State of Texas v. USA ( 2015 )


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  •     Case: 15-40238   Document: 00513264640       Page: 1   Date Filed: 11/09/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT      United States Court of Appeals
    __________                              Fifth Circuit
    FILED
    No. 15-40238                          November 9, 2015
    __________                             Lyle W. Cayce
    Clerk
    STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA;
    STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS;
    STATE OF LOUISIANA; STATE OF MONTANA; STATE OF NEBRASKA;
    STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA;
    STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN;
    PAUL R. LEPAGE, Governor, State of Maine;
    PATRICK L. MCCRORY, Governor, State of North Carolina;
    C. L. “BUTCH” OTTER, Governor, State of Idaho;
    PHIL BRYANT, Governor, State of Mississippi;
    STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF OKLAHOMA;
    STATE OF FLORIDA; STATE OF ARIZONA; STATE OF ARKANSAS;
    ATTORNEY GENERAL BILL SCHUETTE; STATE OF NEVADA;
    STATE OF TENNESSEE,
    Plaintiffs−Appellees,
    versus
    UNITED STATES OF AMERICA;
    JEH CHARLES JOHNSON, Secretary, Department of Homeland Security;
    R. GIL KERLIKOWSKE,
    Commissioner of U.S. Customs and Border Protection;
    RONALD D. VITIELLO,
    Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection;
    SARAH R. SALDANA,
    Director of U.S. Immigration and Customs Enforcement;
    LEON RODRIGUEZ, Director of U.S. Citizenship and Immigration Services,
    Defendants−Appellants.
    _______________________
    Appeal from the United States District Court
    for the Southern District of Texas
    _______________________
    Case: 15-40238          Document: 00513264640          Page: 2     Date Filed: 11/09/2015
    No. 15-40238
    Before KING, SMITH, and ELROD, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:
    The United States1 appeals a preliminary injunction, pending trial, for-
    bidding implementation of the Deferred Action for Parents of Americans and
    Lawful Permanent Residents program (“DAPA”).                          Twenty-six states (the
    “states”2) challenged DAPA under the Administrative Procedure Act (“APA”)
    and the Take Care Clause of the Constitution;3 in an impressive and thorough
    Memorandum Opinion and Order issued February 16, 2015, the district court
    enjoined the program on the ground that the states are likely to succeed on
    their claim that DAPA is subject to the APA’s procedural requirements. Texas
    v. United States, 
    86 F. Supp. 3d 591
    , 677 (S.D. Tex. 2015).4
    The government appealed and moved to stay the injunction pending
    resolution of the merits. After extensive briefing and more than two hours of
    oral argument, a motions panel denied the stay after determining that the
    appeal was unlikely to succeed on its merits. Texas v. United States, 
    787 F.3d 733
    , 743 (5th Cir. 2015). Reviewing the district court’s order for abuse of dis-
    cretion, we affirm the preliminary injunction because the states have standing;
    they have established a substantial likelihood of success on the merits of their
    procedural and substantive APA claims; and they have satisfied the other ele-
    ments required for an injunction.5
    This opinion refers to the defendants collectively as “the United States” or “the gov-
    1
    ernment” unless otherwise indicated.
    2We refer to the plaintiffs collectively as “the states,” but as appropriate we refer only
    to Texas because it is the only state that the district court determined to have standing.
    3 We find it unnecessary, at this early stage of the proceedings, to address or decide
    the challenge based on the Take Care Clause.
    4   We cite the district court’s opinion as “Dist. Ct. Op., 86 F. Supp. 3d at ___.”
    5   Our dedicated colleague has penned a careful dissent, with which we largely but
    2
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    I.
    A.
    In June 2012, the Department of Homeland Security (“DHS”) imple-
    mented the Deferred Action for Childhood Arrivals program (“DACA”).6 In the
    DACA Memo to agency heads, the DHS Secretary “set[] forth how, in the exer-
    cise of . . . prosecutorial discretion, [DHS] should enforce the Nation’s immi-
    gration laws against certain young people” and listed five “criteria [that]
    should be satisfied before an individual is considered for an exercise of prose-
    cutorial discretion.”7 The Secretary further instructed that “[n]o individual
    should receive deferred action . . . unless they [sic] first pass a background
    check and requests for relief . . . are to be decided on a case by case basis.” 8
    Although stating that “[f]or individuals who are granted deferred action . . . ,
    [U.S. Citizenship and Immigration Services (“USCIS”)] shall accept applica-
    tions to determine whether these individuals qualify for work authorization,”
    the DACA Memo purported to “confer[] no substantive right, immigration
    status or pathway to citizenship.”9 At least 1.2 million persons qualify for
    DACA, and approximately 636,000 applications were approved through 2014.
    respectfully disagree. It is well-researched, however, and bears a careful read.
    6 Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David Agui-
    lar, Acting Comm’r, U.S. Customs and Border Prot., et al. 1 (June 15, 2012) (the “DACA
    Memo”),           http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-
    individuals-who-came-to-us-as-children.pdf.
    7 
    Id. (stating that
    an individual may be considered if he “[1] came to the United States
    under the age of sixteen; [2] has continuously resided in the United States for a[t] least five
    years preceding [June 15, 2012] and is present in the United States on [June 15]; [3] is cur-
    rently in school, has graduated from high school, has obtained a general education develop-
    ment certificate, or is an honorably discharged veteran of the [military]; [4] has not been
    convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor
    offenses, or otherwise poses a threat to national security or public safety; and [5] is not above
    the age of thirty”).
    8   
    Id. at 2.
           9   
    Id. at 3.
                                                   3
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    Dist. Ct. 
    Op., 86 F. Supp. 3d at 609
    .
    In November 2014, by what is termed the “DAPA Memo,” DHS expanded
    DACA by making millions more persons eligible for the program10 and extend-
    ing “[t]he period for which DACA and the accompanying employment authori-
    zation is granted . . . to three-year increments, rather than the current two-
    year increments.”11 The Secretary also “direct[ed] USCIS to establish a pro-
    cess, similar to DACA,” known as DAPA, which applies to “individuals who . .
    . have, [as of November 20, 2014], a son or daughter who is a U.S. citizen or
    lawful permanent resident” and meet five additional criteria.12 The Secretary
    stated that, although “[d]eferred action does not confer any form of legal status
    in this country, much less citizenship[,] it [does] mean[] that, for a specified
    period of time, an individual is permitted to be lawfully present in the United
    States.”13 Of the approximately 11.3 million illegal aliens14 in the United
    10Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon Rodriguez,
    Dir.,       USCIS,          et          al.        3–4       (Nov.       20,        2014),
    http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
    11 
    Id. at 3.
    The district court enjoined implementation of the following three DACA
    expansions, and they are included in the term “DAPA” in this opinion: (1) the “age restriction
    exclud[ing] those who were older than 31 on the date of the [DACA] announcement . . . will
    no longer apply,” id.; (2) “[t]he period for which DACA and the accompanying employment
    authorization is granted will be extended to three-year increments, rather than the current
    two-year increments,” id.; (3) “the eligibility cut-off date by which a DACA applicant must
    have been in the United States should be adjusted from June 15, 2007 to January 1, 2010,”
    
    id. at 4.
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 677
    –78 & n.111.
    12 DAPA Memo at 4 (directing that individuals may be considered for deferred action
    if they “[1] have, on [November 20, 2014], a son or daughter who is a U.S. citizen or lawful
    permanent resident; [2] have continuously resided in the United States since before Janu-
    ary 1, 2010; [3] are physically present in the United States on [November 20, 2014], and at
    the time of making a request for consideration of deferred action with USCIS; [4] have no
    lawful status on [November 20, 2014]; [5] are not an enforcement priority as reflected in the
    November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented
    Immigrants Memorandum; and [6] present no other factors that, in the exercise of discretion,
    makes the grant of deferred action inappropriate”).
    13   
    Id. at 2
    (emphasis added).
    14   Although “[a]s a general rule, it is not a crime for a removable alien to remain
    4
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    States, 4.3 million would be eligible for lawful presence pursuant to DAPA.
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 612
    n.11, 670.
    “Lawful presence” is not an enforceable right to remain in the United
    States and can be revoked at any time, but that classification nevertheless has
    significant legal consequences. Unlawfully present aliens are generally not
    eligible to receive federal public benefits, see 8 U.S.C. § 1611, or state and local
    public benefits unless the state otherwise provides, see 8 U.S.C. § 1621.15 But
    as the government admits in its opening brief, persons granted lawful presence
    pursuant to DAPA are no longer “bar[red] . . . from receiving social security
    present in the United States,” it is a civil offense. Arizona v. United States, 
    132 S. Ct. 2492
    ,
    2505 (2012); see 8 U.S.C. §§ 1182(a)(9)(B)(i), 1227(a)(1)(A)–(B). This opinion therefore refers
    to such persons as “illegal aliens”:
    The usual and preferable term in [American English] is illegal alien. The other
    forms have arisen as needless euphemisms, and should be avoided as near-
    gobbledygook. The problem with undocumented is that it is intended to mean, by
    those who use it in this phrase, “not having the requisite documents to enter or stay
    in a country legally.” But the word strongly suggests “unaccounted for” to those
    unfamiliar with this quasi-legal jargon, and it may therefore obscure the meaning.
    More than one writer has argued in favor of undocumented alien . . . [to] avoid[]
    the implication that one’s unauthorized presence in the United States is a crime . . . .
    Moreover, it is wrong to equate illegality with criminality, since many illegal acts
    are not criminal. Illegal alien is not an opprobrious epithet: it describes one present
    in a country in violation of the immigration laws (hence “illegal”).
    BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE 912 (Oxford 3d ed. 2011) (cita-
    tions omitted). And as the district court pointed out, “it is the term used by the Supreme
    Court in its latest pronouncement pertaining to this area of the law.” Dist. Ct. 
    Op., 86 F. Supp. 3d at 605
    n.2 (citing Arizona v. United States, 
    132 S. Ct. 2492
    , 2497 (2012)).
    “[I]legal alien has going for it both history and well-documented, generally accepted use.”
    Matthew Salzwedel, The Lawyer’s Struggle to Write, 16 SCRIBES JOURNAL OF LEGAL WRITING
    69, 76 (2015).
    15  Those provisions reflect Congress’s concern that “aliens have been applying for and
    receiving public benefits from Federal, State, and local governments at increasing rates” and
    that “[i]t is a compelling government interest to remove the incentive for illegal immigration
    provided by the availability of public benefits.” 8 U.S.C. § 1601. Moreover, the provisions
    incorporate a national policy that “aliens within the Nation’s borders not depend on public
    resources to meet their needs” and that “[s]elf-sufficiency has been a basic principle of United
    States immigration law since this country’s earliest immigration statutes.” 
    Id. 5 Case:
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    retirement benefits, social security disability benefits, or health insurance
    under Part A of the Medicare program.”16 That follows from § 1611(b)(2)–(3),
    which provides that the exclusion of benefits in § 1611(a) “shall not apply to
    any benefit[s] payable under title[s] II [and XVIII] of the Social Security Act
    . . . to an alien who is lawfully present in the United States as determined by
    the Attorney General . . . .” (emphasis added). A lawfully present alien is still
    required to satisfy independent qualification criteria before receiving those
    benefits, but the grant of lawful presence removes the categorical bar and
    thereby makes otherwise ineligible persons eligible to qualify.
    “Each person who applies for deferred action pursuant to the [DAPA]
    criteria . . . shall also be eligible to apply for work authorization for the [renew-
    able three-year] period of deferred action.” DAPA Memo at 4. The United
    States concedes that “[a]n alien with work authorization may obtain a Social
    Security Number,” “accrue quarters of covered employment,” and “correct wage
    records to add prior covered employment within approximately three years of
    the year in which the wages were earned or in limited circumstances there-
    after.”17      The district court determined―and the government does not
    dispute―“that DAPA recipients would be eligible for earned income tax credits
    once they received a Social Security number.”18
    As for state benefits, although “[a] State may provide that an alien who
    is not lawfully present in the United States is eligible for any State or local
    public benefit for which such alien would otherwise be ineligible under
    16   Brief for Appellants at 48–49 (citing 8 U.S.C. § 1611(b)(2)–(3)).
    17 Brief for Appellants at 49 (citation omitted) (citing 42 U.S.C. § 405(c)(1)(B), (4),
    (5)(A)–(J); 8 C.F.R. § 1.3(a)(4)(vi); 20 C.F.R. §§ 422.104(a)(2), 422.105(a)).
    18 Dist. Ct. 
    Op., 86 F. Supp. 3d at 654
    n.64; see also 26 U.S.C. § 32(c)(1)(E), (m) (stating
    that eligibility for earned income tax credit is limited to individuals with Social Security
    numbers); 20 C.F.R. §§ 422.104(a)(2), 422.107(a), (e)(1).
    6
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    subsection (a),” § 1621(d), Texas has chosen not to issue driver’s licenses to
    unlawfully present aliens.19 Texas maintains that documentation confirming
    lawful presence pursuant to DAPA would allow otherwise ineligible aliens to
    become eligible for state-subsidized driver’s licenses.              Likewise, certain
    unemployment compensation “[b]enefits are not payable based on services
    performed by an alien unless the alien . . . was lawfully present for purposes of
    performing the services . . . .”20 Texas contends that DAPA recipients would
    also become eligible for unemployment insurance.
    B.
    The states sued to prevent DAPA’s implementation on three grounds.
    First, they asserted that DAPA violated the procedural requirements of the
    APA as a substantive rule that did not undergo the requisite notice-and-
    comment rulemaking. See 5 U.S.C. § 553. Second, the states claimed that
    DHS lacked the authority to implement the program even if it followed the
    correct rulemaking process, such that DAPA was substantively unlawful under
    the APA. See 5 U.S.C. § 706(2)(A)–(C). Third, the states urged that DAPA was
    an abrogation of the President’s constitutional duty to “take Care that the
    Laws be faithfully executed.” U.S. CONST. art. II, § 3.
    The district court held that Texas has standing. It concluded that the
    state would suffer a financial injury by having to issue driver’s licenses to
    DAPA beneficiaries at a loss.          Dist. Ct. 
    Op., 86 F. Supp. 3d at 616
    –23.
    19   TEX. TRANSP. CODE § 521.142(a) (“An applicant who is not a citizen of the United
    States must present . . . documentation issued by the appropriate United States agency that
    authorizes the applicant to be in the United States before the applicant may be issued a
    driver’s license.” (emphasis added)).
    20   TEX. LAB. CODE § 207.043(a)(2) (emphasis added); see also 26 U.S.C.
    § 3304(a)(14)(A) (approval of state laws making compensation not payable to aliens unless
    they are “lawfully present for purposes of performing such services” (emphasis added)).
    7
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    Alternatively, the court relied on a new theory it called “abdication standing”:
    Texas had standing because the United States has exclusive authority over
    immigration but has refused to act in that area. 
    Id. at 636–43.
    The court also
    considered but ultimately did not accept the notions that Texas could sue as
    parens patriae on behalf of citizens facing economic competition from DAPA
    beneficiaries and that the state had standing based on the losses it suffers gen-
    erally from illegal immigration. 
    Id. at 625–36.
    The court temporarily enjoined DAPA’s implementation after determin-
    ing that Texas had shown a substantial likelihood of success on its claim that
    the program must undergo notice and comment. 
    Id. at 677.
    Despite full brief-
    ing, the court did not rule on the “Plaintiffs’ likelihood of success on their sub-
    stantive APA claim or their constitutional claims under the Take Care
    Clause/separation of powers doctrine.” 
    Id. On appeal,
    the United States main-
    tains that the states do not have standing or a right to judicial review and,
    alternatively, that DAPA is exempt from the notice-and-comment require-
    ments. The government also contends that the injunction, including its nation-
    wide scope, is improper as a matter of law.
    II.
    “We review a preliminary injunction for abuse of discretion.”21 A prelim-
    inary injunction should issue only if the states, as movants, establish
    (1) a substantial likelihood of success on the merits, (2) a substantial
    threat of irreparable injury if the injunction is not issued, (3) that the
    threatened injury if the injunction is denied outweighs any harm that
    will result if the injunction is granted, and (4) that the grant of an
    injunction will not disserve the public interest.[22]
    “As to each element of the district court’s preliminary-injunction analysis
    21   Sepulvado v. Jindal, 
    729 F.3d 413
    , 417 (5th Cir. 2013).
    22   
    Id. (quoting Byrum
    v. Landreth, 
    566 F.3d 442
    , 445 (5th Cir. 2009)).
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    . . . findings of fact are subject to a clearly-erroneous standard of review, while
    conclusions of law are subject to broad review and will be reversed if
    incorrect.”23
    III.
    The government claims the states lack standing to challenge DAPA. As
    we will analyze, however, their standing is plain, based on the driver’s-license
    rationale,24 so we need not address the other possible grounds for standing.
    As the parties invoking federal jurisdiction, the states have the burden
    of establishing standing. See Clapper v. Amnesty Int’l USA, 
    133 S. Ct. 1138
    ,
    1148 (2013). They must show an injury that is “concrete, particularized, and
    actual or imminent; fairly traceable to the challenged action; and redressable
    by a favorable ruling.” 
    Id. at 1147
    (citation omitted). “When a litigant is vested
    with a procedural right, that litigant has standing if there is some possibility
    that the requested relief will prompt the injury-causing party to reconsider the
    decision that allegedly harmed the litigant.” Massachusetts v. EPA, 
    549 U.S. 497
    , 518 (2007). “[T]he presence of one party with standing is sufficient to
    satisfy Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for
    Acad. & Institutional Rights, Inc., 
    547 U.S. 47
    , 52 n.2 (2006).
    23   
    Id. (quoting Janvey
    v. Alguire, 
    647 F.3d 585
    , 591–92 (5th Cir. 2011)).
    We did not reach this issue in Crane v. Johnson, 
    783 F.3d 244
    (5th Cir. 2015). There,
    24
    we concluded that neither the State of Mississippi nor Immigration and Customs Enforce-
    ment (“ICE”) agents and deportation officers had standing to challenge DACA. 
    Id. at 2
    55.
    We explicitly determined that Mississippi had waived the theory that Texas now advances:
    In a letter brief filed after oral argument, Mississippi put forward three new argu-
    ments in support of its standing, [including] (1) the cost of issuing driver’s licenses
    to DACA’s beneficiaries . . . . Because Mississippi failed to provide evidentiary sup-
    port on these arguments and failed to make these arguments in their opening brief
    on appeal and below, they have been waived.
    
    Id. at 2
    52 n.34.
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    A.
    We begin by considering whether the states are entitled to “special solici-
    tude” in our standing inquiry under Massachusetts v. EPA. They are.
    The Court held that Massachusetts had standing to contest the EPA’s
    decision not to regulate greenhouse-gas emissions from new motor vehicles,
    which allegedly contributed to a rise in sea levels and a loss of the state’s
    coastal land. Massachusetts v. 
    EPA, 549 U.S. at 526
    . “It is of considerable
    relevance that the party seeking review here is a sovereign State and not . . . a
    private individual” because “States are not normal litigants for the purposes of
    invoking federal jurisdiction.” 
    Id. at 518.25
    The Court identified two additional considerations that entitled Massa-
    chusetts “to special solicitude in [the Court’s] standing analysis.” 
    Id. at 520.26
    First, the Clean Air Act created a procedural right to challenge the EPA’s
    decision:
    The parties’ dispute turns on the proper construction of a congres-
    sional statute, a question eminently suitable to resolution in federal
    court. Congress has moreover authorized this type of challenge to EPA
    action. That authorization is of critical importance to the standing
    inquiry: “Congress has the power to define injuries and articulate
    25 The dissent, throughout, cleverly refers to the states, more than forty times, as the
    “plaintiffs,” obscuring the fact that they are sovereign states (while referring to the defen-
    dants as the “government”). See Dissent, passim.
    26 The dissent attempts to diminish the considerable significance of the “special
    solicitude” language, which, to say the least, is inconvenient to the United States in its effort
    to defeat standing. The dissent protests that it is “only a single, isolated phrase” that
    “appears only once.” Dissent at 9.
    The dissent, however, avoids mention of the Court’s explanation that “[i]t is of consid-
    erable relevance that the party seeking review here is a sovereign State.” Massachusetts v.
    
    EPA, 549 U.S. at 518
    . In light of that enlargement on the “special solicitude” phrase, it is
    obvious that being a state greatly matters in the standing inquiry, and it makes no difference,
    in the words of the dissent, “whether the majority means that states are afforded a relaxed
    standing inquiry by virtue of their statehood or whether their statehood, in [and] of itself,
    helps confer standing.” Dissent at 9.
    10
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    chains of causation that will give rise to a case or controversy where
    none existed before.” “In exercising this power, however, Congress
    must at the very least identify the injury it seeks to vindicate and relate
    the injury to the class of persons entitled to bring suit.” We will not,
    therefore, “entertain citizen suits to vindicate the public’s nonconcrete
    interest in the proper administration of the laws.”[27]
    Second, the EPA’s decision affected Massachusetts’s “quasi-sovereign”
    interest in its territory:
    When a State enters the Union, it surrenders certain sovereign pre-
    rogatives. Massachusetts cannot invade Rhode Island to force reduc-
    tions in greenhouse gas emissions, it cannot negotiate an emissions
    treaty with China or India, and in some circumstances the exercise of
    its police powers to reduce in-state motor-vehicle emissions might well
    be pre-empted.
    These sovereign prerogatives are now lodged in the Federal Govern-
    ment, and Congress has ordered EPA to protect Massachusetts (among
    others) by prescribing standards applicable to the “emission of any air
    pollutant from any class or classes of new motor vehicle engines, which
    in [the Administrator’s] judgment cause, or contribute to, air pollution
    which may reasonably be anticipated to endanger public health or
    welfare.”[28]
    Like Massachusetts, the instant plaintiffs―the states―“are not normal
    litigants for the purposes of invoking federal jurisdiction,” 
    id. at 518,
    and the
    same two additional factors are present. First, “[t]he parties’ dispute turns on
    the proper construction of a congressional statute,”29 the APA, which author-
    izes challenges to “final agency action for which there is no other adequate
    remedy in a court.” 5 U.S.C. § 704. Similarly, the disagreement in Massachu-
    setts v. EPA concerned the interpretation of the Clean Air Act, which provides
    for judicial review of “final action taken[] by the Administrator.”
    27   Massachusetts v. 
    EPA, 549 U.S. at 516
    –17 (citations omitted).
    28  
    Id. at 519–20
    (alteration in original) (citation omitted) (quoting 42 U.S.C.
    § 7521(a)(1)).
    29   
    Id. at 516.
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    42 U.S.C. § 7607(b)(1). Further, as we will explain, the states are within the
    zone of interests of the Immigration and Nationality Act (“INA”);30 they are not
    asking us to “entertain citizen suits to vindicate the public’s nonconcrete inter-
    est in the proper administration of the laws.”31
    In enacting the APA, Congress intended for those “suffering legal wrong
    because of agency action” to have judicial recourse,32 and the states fall well
    within that definition.33 The Clean Air Act’s review provision is more specific
    than the APA’s, but the latter is easily adequate to justify “special solicitude”
    here. The procedural right to challenge EPA decisions created by the Clean Air
    Act provided important support to Massachusetts because the challenge
    Massachusetts sought to bring―a challenge to an agency’s decision not to
    act―is traditionally the type for which it is most difficult to establish standing
    and a justiciable issue.34 Texas, by contrast, challenges DHS’s affirmative deci-
    sion to set guidelines for granting lawful presence to a broad class of illegal
    aliens. Because the states here challenge DHS’s decision to act, rather than its
    decision to remain inactive, a procedural right similar to that created by the
    Clean Air Act is not necessary to support standing. See 5 U.S.C. § 704.
    As we will show, DAPA would have a major effect on the states’ fiscs,
    causing millions of dollars of losses in Texas alone, and at least in Texas, the
    30   See infra part IV.
    31   Massachusetts v. 
    EPA, 549 U.S. at 516
    –17 (citation omitted).
    32   5 U.S.C. § 702.
    33 See New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 
    565 F.3d 683
    , 694,
    696 n.13 (10th Cir. 2009) (holding that New Mexico was entitled to “special solicitude” where
    one of its claims was based on the APA); Wyoming ex rel. Crank v. United States, 
    539 F.3d 1236
    , 1241–42 (10th Cir. 2008) (holding that Wyoming was entitled to special solicitude
    where its only claim was based on the APA).
    34 See Heckler v. Chaney, 
    470 U.S. 821
    , 831 (observing that “refusals to take enforce-
    ment steps” generally are subject to agency discretion, and the “presumption is that judicial
    review is not available.”).
    12
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    causal chain is especially direct: DAPA would enable beneficiaries to apply for
    driver’s licenses, and many would do so, resulting in Texas’s injury.
    Second, DAPA affects the states’ “quasi-sovereign” interests by imposing
    substantial pressure on them to change their laws, which provide for issuing
    driver’s licenses to some aliens and subsidizing those licenses.35 “[S]tates have
    a sovereign interest in ‘the power to create and enforce a legal code.’” 36
    Pursuant to that interest, states may have standing based on (1) federal asser-
    tions of authority to regulate matters they believe they control, 37 (2) federal
    preemption of state law,38 and (3) federal interference with the enforcement of
    state law,39 at least where “the state statute at issue regulate[s] behavior or
    provide[s] for the administration of a state program”40 and does not “simply
    purport[] to immunize [state] citizens from federal law.”41 Those intrusions
    are analogous to pressure to change state law.42
    Moreover, these plaintiff states’ interests are like Massachusetts’s in
    35See, e.g., TEX. TRANSP. CODE § 521.142(a) (specifying the requirements for licenses),
    .181 (providing for the issuance of licenses), .421(a) (setting the fees for licenses); Dist. Ct.
    
    Op., 86 F. Supp. 3d at 616
    –17 (finding that Texas subsidizes its licenses).
    36 Tex. Office of Pub. Util. Counsel v. FCC, 
    183 F.3d 393
    , 449 (5th Cir. 1999) (quoting
    Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 
    458 U.S. 592
    , 601 (1982)).
    37   See 
    id. 38See, e.g.,
    Crank, 539 F.3d at 1242
    ; Alaska v. U.S. Dep’t of Transp., 
    868 F.2d 441
    ,
    443–44 (D.C. Cir. 1989); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 
    766 F.2d 228
    , 232–
    33 (6th Cir. 1985); cf. Diamond v. Charles, 
    476 U.S. 54
    , 62 (1986) (commenting that “a State
    has standing to defend the constitutionality of its statute” but not relying on that principle).
    39 See 
    Crank, 539 F.3d at 1241
    –42; 
    Celebrezze, 766 F.2d at 232
    –33; cf. Maine v. Taylor,
    
    477 U.S. 131
    , 137 (1986) (observing in another context that “a State clearly has a legitimate
    interest in the continued enforceability of its own statutes”).
    40   Virginia ex rel. Cuccinelli v. Sebelius, 
    656 F.3d 253
    , 269 (4th Cir. 2011).
    41   
    Id. at 2
    70.
    42 See 
    Crank, 539 F.3d at 1241
    –42 (reasoning that Wyoming was entitled to “special
    solicitude” where its asserted injury was interference with the enforcement of state law).
    13
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    ways that implicate the same sovereignty concerns. When the states joined
    the union, they surrendered some of their sovereign prerogatives over immi-
    gration.43 They cannot establish their own classifications of aliens,44 just as
    “Massachusetts cannot invade Rhode Island to force reductions in greenhouse
    gas emissions [and] cannot negotiate an emissions treaty with China or
    India.”45 The states may not be able to discriminate against subsets of aliens
    in their driver’s license programs without running afoul of preemption or the
    Equal Protection Clause;46 similarly, “in some circumstances[, Massachu-
    setts’s] exercise of its police powers to reduce in-state motor-vehicle emissions
    might well be pre-empted.”47 Both these plaintiff states and Massachusetts
    now rely on the federal government to protect their interests.48 These parallels
    confirm that DAPA affects the states’ “quasi-sovereign” interests.
    The significant opinion in Arizona State Legislature v. Arizona Indepen-
    dent Redistricting Commission, 
    135 S. Ct. 2652
    (2015), announced shortly
    before oral argument herein, reinforces that conclusion. The Court held that
    the Arizona Legislature had standing to sue in response to a ballot initiative
    that removed its redistricting authority and vested it instead in an indepen-
    dent commission. 
    Id. at 2
    665–66. The Court emphasized that the legislature
    was “an institutional plaintiff asserting an institutional injury” to what it
    believed was its constitutional power to regulate elections. 
    Id. at 2
    664. So too
    43   See generally Arizona v. United 
    States, 132 S. Ct. at 2498
    –2501.
    44See Villas at Parkside Partners v. City of Farmers Branch, 
    726 F.3d 524
    , 536 (5th
    Cir. 2013) (en banc).
    45   Massachusetts v. 
    EPA, 549 U.S. at 519
    .
    46The Ninth Circuit has suggested that, see Ariz. Dream Act Coal. v. Brewer, 
    757 F.3d 1053
    , 1061–67 (9th Cir. 2014), but we need not decide the issue.
    47   Massachusetts v. 
    EPA, 549 U.S. at 519
    .
    48   See 
    id. 14 Case:
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    are the states asserting institutional injury to their lawmaking authority. The
    Court also cited Massachusetts v. EPA as opining that the state in that case
    was “entitled to special solicitude in our standing analysis.” 
    Id. at 2
    664–65
    n.10 (quoting Massachusetts v. 
    EPA, 549 U.S. at 520
    ).
    The United States suggests that three presumptions against standing
    apply here. The first is a presumption that a plaintiff lacks standing to chal-
    lenge decisions to confer benefits on, or not to prosecute, a third party. But the
    cases the government cites for that proposition either did not involve stand-
    ing;49 concerned only nonprosecution (as distinguished from both nonprosecu-
    tion and the conferral of benefits);50 or merely reaffirmed that a plaintiff must
    satisfy the standing requirements.51
    The second presumption is against justiciability in the immigration con-
    text. None of the cases the government cites involved standing52 and include
    only general language about the government’s authority over immigration;
    without a specific discussion of standing, they are of limited relevance.53
    The third presumption is that “[t]he [Supreme] Court’s standing analy-
    sis . . . has been ‘especially rigorous when reaching the merits of the dispute
    would force [the Court] to decide whether an action taken by one of the other
    49See 
    Chaney, 470 U.S. at 823
    ; United States v. Cox, 
    342 F.2d 167
    , 170 (5th Cir. 1965)
    (en banc).
    50   See Linda R.S. v. Richard D., 
    410 U.S. 614
    , 615–16 (1973).
    51   See Henderson v. Stalder, 
    287 F.3d 374
    , 384 (5th Cir. 2002) (Jones, J., concurring).
    52See Arizona v. United 
    States, 132 S. Ct. at 2497
    ; Sure-Tan, Inc. v. NLRB, 
    467 U.S. 883
    , 886 (1984); Plyler v. Doe, 
    457 U.S. 202
    , 205 (1982); Fiallo v. Bell, 
    430 U.S. 787
    , 788
    (1977); Mathews v. Diaz, 
    426 U.S. 67
    , 69 (1976). In the other case the government cites, “we
    assume[d], without deciding, that the plaintiffs have standing.” Texas v. United States,
    
    106 F.3d 661
    , 664 n.2 (5th Cir. 1997).
    53   We address justiciability in part V.B, infra.
    15
    Case: 15-40238          Document: 00513264640        Page: 16      Date Filed: 11/09/2015
    No. 15-40238
    two branches of the Federal Government was unconstitutional.’” 54 We decide
    this appeal, however, without resolving the constitutional claim.
    Therefore, the states are entitled to “special solicitude” in the standing
    inquiry. We stress that our decision is limited to these facts. In particular, the
    direct, substantial pressure directed at the states and the fact that they have
    surrendered some of their control over immigration to the federal government
    mean this case is sufficiently similar to Massachusetts v. EPA, but pressure to
    change state law may not be enough―by itself―in other situations.
    B.
    At least one state—Texas—has satisfied the first standing requirement
    by demonstrating that it would incur significant costs in issuing driver’s
    licenses to DAPA beneficiaries. Under current state law, licenses issued to
    beneficiaries would necessarily be at a financial loss. The Department of Pub-
    lic Safety “shall issue” a license to a qualified applicant.                   TEX. TRANSP.
    CODE § 521.181. A noncitizen “must present . . . documentation issued by the
    appropriate United States agency that authorizes the applicant to be in the
    United States.” 
    Id. § 521.142(a).
    If permitted to go into effect, DAPA would enable at least 500,000 illegal
    aliens in Texas55 to satisfy that requirement with proof of lawful presence56 or
    54Ariz. State 
    Legislature, 135 S. Ct. at 2665
    n.12 (final alteration in original) (quoting
    Raines v. Byrd, 
    521 U.S. 811
    , 819–20 (1997)).
    55   See Dist. Ct. 
    Op., 86 F. Supp. 3d at 616
    .
    56  See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE 4 (2013),
    https://www.txdps.state.tx.us/DriverLicense/documents/verifyingLawfulPresence.pdf (list-
    ing an acceptable document for a “Person granted deferred action” as “Immigration documen-
    tation with an alien number or I-94 number”); DAPA Memo at 2 (“Deferred action . . . means
    that, for a specified period of time, an individual is permitted to be lawfully present in the
    United States.”).
    16
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    No. 15-40238
    employment authorization.57 Texas subsidizes its licenses and would lose a
    minimum of $130.89 on each one it issued to a DAPA beneficiary. 58 Even a
    modest estimate would put the loss at “several million dollars.” Dist. Ct. 
    Op., 86 F. Supp. 3d at 617
    .
    Instead of disputing those figures, the United States claims that the
    costs would be offset by other benefits to the state. It theorizes that, because
    DAPA beneficiaries would be eligible for licenses, they would register their
    vehicles, generating income for the state, and buy auto insurance, reducing the
    expenses associated with uninsured motorists.                   The government suggests
    employment authorization would lead to increased tax revenue and decreased
    reliance on social services.
    Even if the government is correct, that does not negate Texas’s injury,
    because we consider only those offsetting benefits that are of the same type
    and arise from the same transaction as the costs.59 “Once injury is shown, no
    57 See TEX. DEP’T OF PUB. SAFETY, supra note 56, at 3 (stating that an “Employment
    Authorization Document” is sufficient proof of lawful presence); Dist. Ct. 
    Op., 86 F. Supp. 3d at 616
    n.14 (explaining that “[e]mployment authorization” is “a benefit that will be available
    to recipients of DAPA”).
    58  See Dist. Ct. 
    Op., 86 F. Supp. 3d at 617
    . Some of those costs are directly attributable
    to the United States. Under the REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat.
    302 (codified as amended in scattered sections of Titles 8 and 49 U.S.C.), Texas must verify
    each applicant’s immigration status through DHS, see 6 C.F.R. § 37.11(g), .13(b)(1), or the
    state’s licenses will no longer be valid for a number of purposes, including commercial air
    travel without a secondary form of identification, REAL ID Enforcement in Brief, U.S.
    DEPARTMENT OF HOMELAND SECURITY (July 27, 2015), http://www.dhs.gov/real-id-
    enforcement-brief. Texas pays an average of 75¢ per applicant to comply with that mandate.
    See Dist. Ct. 
    Op., 86 F. Supp. 3d at 617
    .
    59 See, e.g., L.A. Haven Hospice, Inc. v. Sebelius, 
    638 F.3d 644
    , 656–59 (9th Cir. 2011)
    (holding that a hospice had standing to challenge a regulation that allegedly increased its
    costs in some ways even though the regulation may have saved it money in other ways or in
    other fiscal years); Sutton v. St. Jude Med. S.C., Inc., 
    419 F.3d 568
    , 570–75 (6th Cir. 2005)
    (concluding that a patient had standing to sue designers, manufacturers, and distributors of
    a medical device implanted in his body because it allegedly increased risk of medical problems
    even though it had not malfunctioned and had benefited him); Markva v. Haveman, 
    317 F.3d 17
        Case: 15-40238         Document: 00513264640         Page: 18    Date Filed: 11/09/2015
    No. 15-40238
    attempt is made to ask whether the injury is outweighed by benefits the plain-
    tiff has enjoyed from the relationship with the defendant. Standing is recog-
    nized to complain that some particular aspect of the relationship is unlawful
    and has caused injury.”60            “Our standing analysis is not an accounting
    exercise . . . .”61
    The one case in which we concluded that the costs of a challenged pro-
    gram were offset by the benefits involved a much tighter nexus. In 
    Henderson, 287 F.3d at 379
    –81, we determined that taxpayers lacked standing to challenge
    a Louisiana law authorizing a license plate bearing a pro-life message, reason-
    ing that the plaintiffs had not shown that the program would use their tax
    dollars, because the extra fees paid by drivers who purchased the plates could
    have covered the associated expenses. The costs and benefits arose out of the
    same transaction, so the plaintiffs had not demonstrated injury.
    Here, none of the benefits the government identifies is sufficiently con-
    nected to the costs to qualify as an offset. The only benefits that are conceiva-
    bly relevant are the increase in vehicle registration and the decrease in unin-
    sured motorists, but even those are based on the independent decisions of
    DAPA beneficiaries and are not a direct result of the issuance of licenses. Anal-
    ogously, the Third Circuit held that sports leagues had standing to challenge
    New Jersey’s decision to license sports gambling, explaining that damage to
    the leagues’ reputations was a cognizable injury despite evidence that more
    people would have watched sports had betting been allowed. NCAA, 
    730 F.3d 547
    , 557–58 (6th Cir. 2003) (deciding that grandparents had standing to challenge a require-
    ment that they pay more for Medicaid benefits than would similarly situated parents, even
    though the grandparents may have received more of other types of welfare benefits).
    6013A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3531.4,
    at 147 (3d ed. 2015) (footnote omitted).
    61   NCAA v. Governor of N.J., 
    730 F.3d 208
    , 223 (3d Cir. 2013).
    18
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    at 222–24. The diminished public perception of the leagues and the greater
    interest in sports were attributable to the licensing plan but did not arise out
    of the same transaction and so could not be compared.
    In the instant case, the states have alleged an injury, and the govern-
    ment predicts that the later decisions of DAPA beneficiaries would produce
    offsetting benefits. Weighing those costs and benefits is precisely the type of
    “accounting exercise,” 
    id. at 223,
    in which we cannot engage. Texas has shown
    injury.
    C.
    Texas has satisfied the second standing requirement by establishing
    that its injury is “fairly traceable” to DAPA. It is undisputed that DAPA would
    enable beneficiaries to apply for driver’s licenses, and there is little doubt that
    many would do so because driving is a practical necessity in most of the state.
    The United States urges that Texas’s injury is not cognizable, because
    the state could avoid injury by not issuing licenses to illegal aliens or by not
    subsidizing its licenses. Although Texas could avoid financial loss by requiring
    applicants to pay the full costs of licenses, it could not avoid injury altogether.
    “[S]tates have a sovereign interest in ‘the power to create and enforce a legal
    code,’”62 and the possibility that a plaintiff could avoid injury by incurring other
    costs does not negate standing.63
    62 Tex. Office of Pub. Util. Counsel v. FCC, 
    183 F.3d 393
    , 449 (5th Cir. 1999) (quoting
    Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 
    458 U.S. 592
    , 601 (1982)).
    63  See Texas v. United States, 
    497 F.3d 491
    , 497 (5th Cir. 2007). The dissent theorizes
    that if “forcing Texas to change its laws would be an injury because states have a ‘sovereign
    interest in the “power to create and enforce a legal code,”’” then Pennsylvania v. New Jersey,
    
    426 U.S. 660
    (1976) (per curiam), must be wrongly decided. Dissent at 12 n.16. The dissent
    posits that Pennsylvania (there) and Texas (here) faced pressure to change their laws, so
    their Article III standing vel non must be the same. But the dissent ignores a key distinction
    between Pennsylvania v. New Jersey and the instant case: As we explain below, the pressure
    19
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    Indeed, treating the availability of changing state law as a bar to stand-
    ing would deprive states of judicial recourse for many bona fide harms. For
    instance, under that theory, federal preemption of state law could never be an
    injury, because a state could always change its law to avoid preemption. But
    courts have often held that states have standing based on preemption. 64 And
    states could offset almost any financial loss by raising taxes or fees. The exis-
    tence of that alternative does not mean they lack standing.
    Relying primarily on Pennsylvania v. New Jersey, 
    426 U.S. 660
    (1976)
    (per curiam), the United States maintains that Texas’s injury is self-inflicted
    because the state voluntarily chose to base its driver’s license policies on
    federal immigration law. In Pennsylvania v. New Jersey, 
    id. at 664,
    666, the
    Court held that several states lacked standing to contest other states’ laws
    taxing a portion of nonresidents’ incomes. The plaintiff states alleged that the
    defendant states’ taxes injured them because the plaintiffs gave their residents
    credits for taxes paid to other states, so the defendants’ taxes increased the
    amount of those credits, causing the plaintiffs to lose revenue. 
    Id. at 663.
    The
    Court flatly rejected that theory of standing:
    In neither of the suits at bar has the defendant State inflicted any
    injury upon the plaintiff States through the imposition of the [chal-
    lenged taxes]. The injuries to the plaintiffs’ fiscs were self-inflicted,
    resulting from decisions by their respective state legislatures. Nothing
    required Maine, Massachusetts, and Vermont to extend a tax credit to
    their residents for income taxes paid to New Hampshire, and nothing
    prevents Pennsylvania from withdrawing that credit for taxes paid to
    New Jersey. No State can be heard to complain about damage inflicted
    by its own hand.
    
    Id. at 664.
    that Pennsylvania faced to change its laws was self-inflicted; Texas’s is not.
    See, e.g., 
    Crank, 539 F.3d at 1242
    ; 
    Alaska, 868 F.2d at 443-44
    ; Celebrezze, 
    766 F.2d 64
    at 232–33.
    20
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    The more recent decision in Wyoming v. Oklahoma, 
    502 U.S. 437
    (1992),
    also informs our analysis. There, the Court held that Wyoming had standing
    to challenge an Oklahoma law requiring some Oklahoma power plants to burn
    at least 10% Oklahoma-mined coal. 
    Id. at 447.
    The Court explained that Wyo-
    ming taxed the extraction of coal in the state and that Oklahoma’s law reduced
    demand for that coal and Wyoming’s corresponding revenue. 
    Id. The Court
    emphasized that the case involved an “undisputed” “direct injury in the form
    of a loss of specific tax revenues.” 
    Id. at 448.
    It rejected Oklahoma’s contention
    “that Wyoming is not itself engaged in the commerce affected, is not affected
    as a consumer, and thus has not suffered the type of direct injury cognizable
    in a Commerce Clause action,” 
    id., concluding that
    Wyoming’s loss of revenue
    was sufficient, 
    id. at 448–50.
    The Court did not cite Pennsylvania v. New Jer-
    sey or discuss the theory that Wyoming’s injury was self-inflicted.
    Both the Pennsylvania v. New Jersey plaintiffs and Wyoming structured
    their laws in ways that meant their finances would have been affected by
    changes in other states’ laws. Because the tax credits in Pennsylvania v. New
    Jersey were based on taxes paid to other states, any tax increases in other
    states would have decreased the plaintiffs’ revenues, and any tax cuts would
    have had the opposite effect. Analogously, Wyoming’s tax was based on the
    amount of coal extracted there, so any policies in other states that decreased
    demand for that coal would have diminished Wyoming’s revenues, and any
    policies that bolstered demand would have had the opposite effect.
    In other words, the schemes in both cases made the plaintiff states’
    finances dependent on those of third parties—either resident taxpayers or coal
    companies—which in turn were affected by other states’ laws. The issues in
    Pennsylvania v. New Jersey and Wyoming v. Oklahoma were thus similar to
    the question here, but the Court announced different results. The two cases
    21
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    are readily distinguishable, however, and, based on two considerations, Wyom-
    ing v. Oklahoma directs our decision.
    First, Texas and Wyoming sued in response to major changes in the
    defendant states’ policies. Texas sued after the United States had announced
    DAPA, which could make at least 500,000 illegal aliens eligible for driver’s
    licenses and cause millions of dollars of losses; Wyoming sued after Oklahoma
    had enacted a law that cost Wyoming over $1 million in tax revenues. See 
    id. at 445–46
    & n.6. Conversely, the Pennsylvania v. New Jersey plaintiffs sued
    not because of a change in the defendant states’ laws but because they believed
    that Austin v. New Hampshire, 
    420 U.S. 656
    (1975), had rendered the defen-
    dants’ laws unconstitutional. See Pennsylvania v. New 
    Jersey, 426 U.S. at 661
    –
    63. The fact that Texas sued in response to a significant change in the defen-
    dants’ policies shows that its injury is not self-inflicted.
    Second, the plaintiffs’ options for accomplishing their policy goals were
    more limited in this case and in Wyoming v. Oklahoma than in Pennsylvania
    v. New Jersey. Texas seeks to issue licenses only to those lawfully present in
    the United States, and the state is required to use federal immigration classi-
    fications to do so. See Villas at Parkside 
    Partners, 726 F.3d at 536
    . Likewise,
    Wyoming sought to tax the extraction of coal and had no way to avoid being
    affected by other states’ laws that reduced demand for that coal.65
    65 It follows that the dissent’s unsubstantiated claim that “Pennsylvania, like Texas,
    tied its law to that of another sovereign, whereas Wyoming did not” (emphasis added), is
    obvious error. Dissent at 12 n.16. The dissent ignores our explication of Texas’s and
    Wyoming’s policy goals. We do not assert that those states cannot change their laws to avoid
    injury from changes in the laws of another state. Rather, we demonstrate that Texas and
    Wyoming cannot both change their laws to avoid injury from amendments to another
    sovereign’s laws and achieve their policy goals.
    For example, although, as we have said but the dissent overlooks, Wyoming easily
    could have avoided injury from changes in Oklahoma’s laws by abandoning entirely its tax
    on coal extraction, it would have surrendered its policy goal of taxing extraction in the first
    22
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    By way of contrast, the plaintiff states in Pennsylvania v. New Jersey
    could have achieved their policy goal in myriad ways, such as basing their tax
    credits on residents’ out-of-state incomes instead of on taxes actually paid to
    other states. That alternative would have achieved those plaintiffs’ goal of
    allowing their residents to avoid double taxation of their out-of-state incomes,
    but it would not have tied the plaintiffs’ finances to other states’ laws. The fact
    that Texas had no similar option means its injury is not self-inflicted.
    The decision in Amnesty International supports this conclusion: The
    Court held that the plaintiffs lacked standing to challenge a provision of the
    Foreign Intelligence Surveillance Act authorizing the interception of certain
    electronic communications. Amnesty 
    Int’l, 133 S. Ct. at 1155
    . The plaintiffs
    alleged that they had been forced to take costly steps to avoid surveillance,
    such as traveling to meet in person and not discussing certain topics by email
    or phone. 
    Id. at 1150–51.
    The Court held that any such injuries were self-
    inflicted, 
    id. at 1152–53,
    reasoning that plaintiffs “cannot manufacture stand-
    ing merely by inflicting harm on themselves based on their fears of hypotheti-
    cal future harm that is not certainly impending.” 
    Id. at 1151
    (citing Pennsyl-
    vania v. New 
    Jersey, 426 U.S. at 664
    ). “If the law were otherwise, an enter-
    prising plaintiff would be able to secure a lower standard for Article III
    place. Similarly, Texas could avoid financial loss by increasing fees, not subsidizing its
    licenses, or perhaps not issuing licenses to lawfully present aliens, but the consequence would
    be that by taking those actions Texas would have abandoned its fully permissible policy goal
    of providing subsidized licenses only to those who are lawfully present in the United States―a
    policy that, as we have repeatedly pointed out, Texas instituted well before the Secretary
    designed DACA or DAPA.
    In essence, the dissent would have us issue the following edict to Texas: “You may
    avoid injury to the pursuit of your policy goals—injury resulting from a change in federal
    immigration law—by changing your laws to pursue different goals or eliminating them
    altogether. Therefore, your injuries are self-inflicted.” Presumably the dissent would have
    liked for the Supreme Court to have issued a similar edict to Wyoming, which sought to tax
    the extraction of coal and had no way both to continue taxing extraction and to avoid being
    affected by Oklahoma’s laws that reduced demand for that coal. See Dissent at 12–13.
    23
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    standing simply by making an expenditure based on a nonparanoid fear.” 
    Id. By way
    of contrast, there is no allegation that Texas passed its driver’s
    license law to manufacture standing. The legislature enacted the law one year
    before DACA and three years before DAPA was announced,66 and there is no
    hint that the state anticipated a change in immigration policy―much less a
    change as sweeping and dramatic as DAPA. Despite the dissent’s bold sugges-
    tion that Texas’s license-plate-cost injury “is entirely manufactured by Plain-
    tiffs for this case,” Dissent at 12, the injury is not self-inflicted.
    In addition to its notion that Texas could avoid injury, the government
    theorizes that Texas’s injury is not fairly traceable to DAPA because it is
    merely an incidental and attenuated consequence of the program. But Massa-
    chusetts v. EPA establishes that the causal connection is adequate. Texas is
    entitled to the same “special solicitude” as was Massachusetts, and the causal
    link is even closer here.
    For Texas to incur injury, DAPA beneficiaries would have to apply for
    driver’s licenses as a consequence of DHS’s action, and it is apparent that many
    would do so. For Massachusetts’s injury to have occurred, individuals would
    have had to drive less fuel-efficient cars as a result of the EPA’s decision, and
    that would have had to contribute meaningfully to a rise in sea levels, causing
    the erosion of the state’s shoreline. See Massachusetts v. 
    EPA, 549 U.S. at 523
    .
    There was some uncertainty about whether the EPA’s inaction was a substan-
    tial cause of the state’s harm, considering the many other emissions sources
    involved.67 But the Court held that Massachusetts had satisfied the causation
    66 See Certain State Fiscal Matters; Providing Penalties, ch. 4, sec. 72.03,
    § 521.101(f-2), 2011 Tex. Gen. Laws 5254, 5344 (codified at TEX. TRANSP. CODE § 521.142(a)).
    67See Massachusetts v. 
    EPA, 549 U.S. at 523
    –24; 
    id. at 540–45
    (Roberts, C.J., dissent-
    ing) (questioning whether Massachusetts had lost land at all as a result of climate change
    and whether the EPA’s decision had contributed meaningfully to any erosion).
    24
    Case: 15-40238         Document: 00513264640           Page: 25     Date Filed: 11/09/2015
    No. 15-40238
    requirement because the possibility that the effect of the EPA’s decision was
    minor did not negate standing, and the evidence showed that the effect was
    significant in any event. 
    Id. at 524–25.
    This case raises even less doubt about causation, so the result is the
    same. The matters in which the Supreme Court held that an injury was not
    fairly traceable to the challenged law reinforce this conclusion. In some of
    them, the independent act of a third party was a necessary condition of the
    harm’s occurrence, and it was uncertain whether the third party would take
    the required step.68 Not so here.
    DAPA beneficiaries have strong incentives to obtain driver’s licenses,
    and it is hardly speculative that many would do so if they became eligible. In
    other cases, in which there was insufficient proof of causation, several factors
    potentially contributed to the injury, and the challenged policy likely played a
    minor role.69
    68  See, e.g., Amnesty 
    Int’l, 133 S. Ct. at 1147
    –50 (explaining that, for a provision of the
    Foreign Intelligence Surveillance Act to have resulted in the monitoring of the plaintiffs’
    communications, the Attorney General and the Director of National Intelligence would have
    had to authorize the collection of the communications, the Foreign Intelligence Surveillance
    Court would have had to approve the government’s request, and the government would have
    had to intercept the communications successfully); Whitmore v. Arkansas, 
    495 U.S. 149
    , 156–
    60 (1990) (reasoning that, for a death-row inmate’s decision not to appeal to have harmed the
    plaintiff, who was another death row inmate, the court hearing any appeal would have had
    to rule in a way favorable to the plaintiff).
    69 See, e.g., Already, LLC v. Nike, Inc., 
    133 S. Ct. 721
    , 731 (2013) (rejecting the theory
    “that a market participant is injured for Article III purposes whenever a competitor benefits
    from something allegedly unlawful—whether a trademark, the awarding of a contract, a
    landlord-tenant arrangement, or so on.”); McConnell v. FEC, 
    540 U.S. 93
    , 228 (2003) (com-
    menting that the plaintiffs, candidates for public office, were unable to compete not because
    of increased hard-money limits but instead because of their personal decisions not to accept
    large contributions), overruled on other grounds by Citizens United v. FEC, 
    558 U.S. 310
    (2010); Allen v. Wright, 
    468 U.S. 737
    , 756–59 (1984) (observing that any lack of opportunity
    for the plaintiffs’ children to attend racially integrated public schools was attributable not
    only to tax exemptions for discriminatory private schools but also to the decisions of private-
    school administrators and other parents), abrogated on other grounds by Lexmark Int’l, Inc.
    v. Static Control Components, Inc., 
    134 S. Ct. 1377
    (2014).
    25
    Case: 15-40238     Document: 00513264640    Page: 26   Date Filed: 11/09/2015
    No. 15-40238
    Far from playing an insignificant role, DAPA would be the primary cause
    and likely the only one. Without the program, there would be little risk of a
    dramatic increase in the costs of the driver’s-license program. This case is far
    removed from those in which the Supreme Court has held an injury to be too
    incidental or attenuated. Texas’s injury is fairly traceable to DAPA.
    D.
    Texas has satisfied the third standing requirement, redressability.
    Enjoining DAPA based on the procedural APA claim could prompt DHS to
    reconsider the program, which is all a plaintiff must show when asserting a
    procedural right. See 
    id. at 518.
    And enjoining DAPA based on the substantive
    APA claim would prevent Texas’s injury altogether.
    E.
    The United States submits that Texas’s theory of standing is flawed
    because it has no principled limit. In the government’s view, if Texas can chal-
    lenge DAPA, it could also sue to block a grant of asylum to a single alien or any
    federal policy that adversely affects the state, such as an IRS revenue ruling
    that decreases a corporation’s federal taxable income and corresponding state
    franchise-tax liability.
    The flaw in the government’s reasoning is that Massachusetts v. EPA
    entailed similar risks, but the Court still held that Massachusetts had stand-
    ing. Under that decision, Massachusetts conceivably could challenge the gov-
    ernment’s decision to buy a car with poor fuel efficiency because the vehicle
    could contribute to global warming. The state might be able to contest any
    federal action that prompts more travel. Or it potentially could challenge any
    change in federal policy that indirectly results in greenhouse-gas emissions,
    such as a trade-promotion program that leads to more shipping. One of the
    26
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    No. 15-40238
    dissenting Justices in Massachusetts v. EPA criticized the decision on that
    ground,70 but the majority found those concerns unpersuasive, just as they are
    here.
    After Massachusetts v. EPA, the answer to those criticisms is that there
    are other ways to cabin policy disagreements masquerading as legal claims. 71
    First, a state that has standing still must have a cause of action. Even the
    APA—potentially the most versatile tool available to an enterprising state—
    imposes a number of limitations. A state must be defending concerns that are
    “arguably within the zone of interests to be protected or regulated by the stat-
    ute or constitutional guarantee in question.”72 It is unclear whether a state
    dissatisfied with an IRS revenue ruling would be defending such an interest.
    Moreover, judicial review is unavailable where the statute precludes it or the
    matter is committed to agency discretion. 5 U.S.C. § 701(a). Because of those
    restrictions, a state would have limited ability to challenge many asylum
    determinations. See 8 U.S.C. § 1252(b)(4)(D). Further, numerous policies that
    adversely affect states either are not rules at all or are exempt from the notice-
    and-comment requirements. See generally 5 U.S.C. § 553.
    Second, the standing requirements would preclude much of the litigation
    the government describes. For example, it would be difficult to establish stand-
    ing to challenge a grant of asylum to a single alien based on the driver’s-license
    theory.      The state must allege an injury that has already occurred or is
    70See Massachusetts v. 
    EPA, 549 U.S. at 546
    (Roberts, C.J., dissenting) (“Every little
    bit helps, so Massachusetts can sue over any little bit.”).
    The dissent responds to this by asserting that “[t]he majority’s observation that this
    71
    suit involves ‘policy disagreements masquerading as legal claims’ is also telling.” Dissent
    at 22. That of course is not what our sentence (which is not a description of the suit at hand)
    says at all.
    Clarke v. Sec. Indus. Ass’n, 
    479 U.S. 388
    , 396 (1987) (quoting Ass’n of Data Process-
    72
    ing Serv. Orgs., Inc. v. Camp, 
    397 U.S. 150
    , 153 (1970)).
    27
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    No. 15-40238
    “certainly impending”;73 it is easier to demonstrate that some DAPA benefici-
    aries would apply for licenses than it is to establish that a particular alien
    would. And causation could be a substantial obstacle. Although the district
    court’s calculation of Texas’s loss from DAPA was based largely on the need to
    hire employees, purchase equipment, and obtain office space, 74 those steps
    would be unnecessary to license one additional person.
    Third, our determination that Texas has standing is based in part on the
    “special solicitude” we afford it under Massachusetts v. EPA as reinforced by
    Arizona State Legislature. To be entitled to that presumption, a state likely
    must be exercising a procedural right created by Congress and protecting a
    “quasi-sovereign” interest. See Massachusetts v. 
    EPA, 549 U.S. at 520
    . Those
    factors will seldom exist. For instance, a grant of asylum to a single alien
    would impose little pressure to change state law. Without “special solicitude,”
    it would be difficult for a state to establish standing, a heavy burden in many
    of the government’s hypotheticals.
    Fourth, as a practical matter, it is pure speculation that a state would
    sue about matters such as an IRS revenue ruling. Though not dispositive of
    the issue, the absence of any indication that such lawsuits will occur suggests
    the government’s parade of horribles is unfounded,75 and its concerns about
    the possible future effects of Texas’s theory of standing do not alter our conclu-
    sion. The states have standing.
    73Amnesty 
    Int’l, 133 S. Ct. at 1147
    (emphasis omitted) (quoting Defs. of 
    Wildlife, 504 U.S. at 565
    n.2).
    74See Dist. Ct. 
    Op., 86 F. Supp. 3d at 616
    –17 (discussing the potential loss and citing
    a portion of a declaration addressing those expenses).
    75See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 
    132 S. Ct. 694
    ,
    710 (2012) (stating, in response to an alleged “parade of horribles,” that “[t]here will be time
    enough to address . . . other circumstances” in future cases without altering the Court’s
    present conclusion).
    28
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    IV.
    Because the states are suing under the APA, they “must satisfy not only
    Article III’s standing requirements, but an additional test: The interest [they]
    assert[] must be ‘arguably within the zone of interests to be protected or
    regulated by the statute’ that [they] say[] was violated.”76 That “test . . . ‘is not
    meant to be especially demanding’” and is applied “in keeping with Congress’s
    ‘evident intent’ when enacting the APA ‘to make agency action presumptively
    reviewable.’”77
    The Supreme Court “ha[s] always conspicuously included the word ‘argu-
    ably’ in the test to indicate that the benefit of any doubt goes to the plaintiff,”
    and “[w]e do not require any ‘indication of congressional purpose to benefit the
    would-be plaintiff.’”78 “The test forecloses suit only when a plaintiff’s ‘interests
    are so marginally related to or inconsistent with the purposes implicit in the
    statute that it cannot reasonably be assumed that Congress intended to permit
    the suit.’”79
    The interests the states seek to protect fall within the zone of interests
    of the INA.80 “The pervasiveness of federal regulation does not diminish the
    importance of immigration policy to the States,” which “bear[] many of the con-
    sequences of unlawful immigration.” Arizona v. United States, 
    132 S. Ct. 76Match
    -E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 
    132 S. Ct. 2199
    , 2210 (2012) (quoting Data 
    Processing, 397 U.S. at 153
    ).
    77   
    Id. (quoting Sec.
    Indus. 
    Ass’n, 479 U.S. at 399
    ).
    78   
    Id. (quoting Sec.
    Indus. 
    Ass’n, 479 U.S. at 399
    –400).
    79   
    Id. (quoting Sec.
    Indus. 
    Ass’n, 479 U.S. at 399
    ).
    80The INA “established a ‘comprehensive federal statutory scheme for regulation of
    immigration and naturalization’ and set ‘the terms and conditions of admission to the country
    and the subsequent treatment of aliens lawfully in the country.’” Chamber of Commerce of
    U.S. v. Whiting, 
    131 S. Ct. 1968
    , 1973 (2011) (quoting DeCanas v. Bica, 
    424 U.S. 351
    , 353,
    359 (1976)).
    29
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    at 2500. Reflecting a concern that “aliens have been applying for and receiving
    public benefits from Federal, State, and local governments at increasing rates,”
    8 U.S.C. § 1601, “Congress deemed some unlawfully present aliens ineligible
    for certain state and local public benefits unless the state explicitly provides
    otherwise.”81 With limited exceptions, unlawfully present aliens are “not eligi-
    ble for any State or local public benefit.” 8 U.S.C. § 1621(a).
    Contrary to the government’s assertion, Texas satisfies the zone-of-
    interests test not on account of a generalized grievance but instead as a result
    of the same injury that gives it Article III standing—Congress has explicitly
    allowed states to deny public benefits to illegal aliens. Relying on that guar-
    antee, Texas seeks to participate in notice and comment before the Secretary
    changes the immigration classification of millions of illegal aliens in a way that
    forces the state to the Hobson’s choice of spending millions of dollars to subsi-
    dize driver’s licenses or changing its statutes.
    V.
    The government maintains that judicial review is precluded even if the
    states are proper plaintiffs. “Any person ‘adversely affected or aggrieved’ by
    agency action . . . is entitled to ‘judicial review thereof,’ as long as the action is
    a ‘final agency action for which there is no other adequate remedy in a court.’”82
    “But before any review at all may be had, a party must first clear the hurdle of
    5 U.S.C. § 701(a). That section provides that the chapter on judicial review
    ‘applies, according to the provisions thereof, except to the extent that—
    (1) statutes preclude judicial review; or (2) agency action is committed to
    81 United States v. Alabama, 
    691 F.3d 1269
    , 1298 (11th Cir. 2012) (emphasis added)
    (citing 8 U.S.C. § 1621).
    
    82Chaney, 470 U.S. at 828
    (quoting 5 U.S.C. §§ 702, 704). The government does not
    dispute that DAPA is a “final agency action.” See Lujan v. Nat’l Wildlife Fed’n, 
    497 U.S. 871
    ,
    882 (1990).
    30
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    agency discretion by law.’” 
    Chaney, 470 U.S. at 828
    .
    “[T]here is a ‘well-settled presumption favoring interpretations of
    statutes that allow judicial review of administrative action,’ and we will accord-
    ingly find an intent to preclude such review only if presented with ‘clear and
    convincing evidence.’”83 The “‘strong presumption’ favoring judicial review of
    administrative action . . . is rebuttable: It fails when a statute’s language or
    structure demonstrates that Congress wanted an agency to police its own
    conduct.” Mach Mining, LLC v. EEOC, 
    135 S. Ct. 1645
    , 1651 (2015).
    Establishing unreviewability is a “heavy burden,”84 and “where substan-
    tial doubt about the congressional intent exists, the general presumption favor-
    ing judicial review of administrative action is controlling.” Block v. Cmty.
    Nutrition Inst., 
    467 U.S. 340
    , 351 (1984). “Whether and to what extent a par-
    ticular statute precludes judicial review is determined not only from its express
    language, but also from the structure of the statutory scheme, its objectives,
    its legislative history, and the nature of the administrative action involved.”
    
    Id. at 345.
    The United States relies on 8 U.S.C. § 1252(g)85 for the proposition that
    the INA expressly prohibits judicial review. But the government’s broad read-
    ing is contrary to Reno v. American-Arab Anti-Discrimination Committee
    (“AAADC”), 
    525 U.S. 471
    , 482 (1999), in which the Court rejected “the
    83Reno v. Catholic Soc. Servs., Inc., 
    509 U.S. 43
    , 63–64 (1993) (quoting McNary v.
    Haitian Refugee Ctr., Inc., 
    498 U.S. 479
    , 496 (1991); Abbott Labs. v. Gardner, 
    387 U.S. 136
    ,
    141 (1967)).
    84   Mach 
    Mining, 135 S. Ct. at 1651
    (quoting Dunlop v. Bachowski, 
    421 U.S. 560
    , 567
    (1975)).
    85With limited exceptions, “no court shall have jurisdiction to hear any cause or claim
    by or on behalf of any alien arising from the decision or action by the Attorney General to
    commence proceedings, adjudicate cases, or execute removal orders against any alien under
    this chapter.” 8 U.S.C. § 1252(g).
    31
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    unexamined assumption that § 1252(g) covers the universe of deportation
    claims—that it is a sort of ‘zipper’ clause that says ‘no judicial review in
    deportation cases unless this section provides judicial review.’” 86 The Court
    emphasized that § 1252(g) is not “a general jurisdictional limitation,” but
    rather “applies only to three discrete actions that the Attorney General may
    take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or
    execute removal orders.’”87
    None of those actions is at issue here—the states’ claims do not arise
    from the Secretary’s “decision or action . . . to commence proceedings, adjudi-
    cate cases, or execute removal orders against any alien,” § 1252(g); instead,
    they stem from his decision to grant lawful presence to millions of illegal aliens
    on a class-wide basis. Further, the states are not bringing a “cause or claim by
    or on behalf of any alien”—they assert their own right to the APA’s procedural
    protections. 
    Id. Congress has
    expressly limited or precluded judicial review of
    many immigration decisions,88 including some that are made in the Secretary’s
    “sole and unreviewable discretion,”89 but DAPA is not one of them.
    Judicial review of DAPA is consistent with the protections Congress
    affords to states that decline to provide public benefits to illegal aliens. “The
    
    86AAADC, 525 U.S. at 482
    . “We are aware of no other instance in the United States
    Code in which language such as this has been used to impose a general jurisdictional
    limitation . . . .” 
    Id. 87 Id.
    (quoting § 1252(g)).
    88 See 
    AAADC, 525 U.S. at 486
    –87 (listing “8 U.S.C. § 1252(a)(2)(A) (limiting review
    of any claim arising from the inspection of aliens arriving in the United States), [(B)] (barring
    review of denials of discretionary relief authorized by various statutory provisions), [(C)] (bar-
    ring review of final removal orders against criminal aliens), [(b)(4)(D)] (limiting review of
    asylum determinations)”); see also, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v) (barring review of waiver
    of reentry restrictions); 1226a(b)(1) (limiting review of detention of terrorist aliens); 1229c(e)
    (barring review of regulations limiting eligibility for voluntary departure), (f) (limiting review
    of denial of voluntary departure).
    89   E.g., 8 U.S.C. §§ 1613(c)(2)(G), 1621(b)(4), 1641.
    32
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    Government of the United States has broad, undoubted power over the subject
    of immigration and the status of aliens,”90 but, through § 1621, Congress has
    sought to protect states from “bear[ing] many of the consequences of unlawful
    immigration.”91 Texas avails itself of some of those protections through Sec-
    tion 521.142(a) of the Texas Transportation Code, which allows the state to
    avoid the costs of issuing driver’s licenses to illegal aliens.
    If 500,000 unlawfully present aliens residing in Texas were reclassified
    as lawfully present pursuant to DAPA, they would become eligible for driver’s
    licenses at a subsidized fee. Congress did not intend to make immune from
    judicial review an agency action that reclassifies millions of illegal aliens in a
    way that imposes substantial costs on states that have relied on the protections
    conferred by § 1621.
    The states contend that DAPA is being implemented without discretion
    to deny applications that meet the objective criteria set forth in the DAPA
    Memo, and under AAADC, judicial review could be available if there is an indi-
    cation that deferred-action decisions are not made on a case-by-case basis. In
    AAADC, a group of aliens “challenge[d] . . . the Attorney General’s decision to
    ‘commence [deportation] proceedings’ against them,” and the Court held that
    § 1252(g) squarely deprived it of jurisdiction. 
    AAADC, 525 U.S. at 487
    . The
    Court noted that § 1252(g) codified the Secretary’s discretion to decline “the
    initiation or prosecution of various stages in the deportation process,” 
    id. at 483,
    and the Court observed that “[p]rior to 1997, deferred-action decisions
    were governed by internal [INS] guidelines which considered [a variety of fac-
    tors],” 
    id. at 484
    n.8. Although those guidelines “were apparently rescinded,”
    90   Arizona v. United 
    States, 132 S. Ct. at 2498
    .
    91   
    Id. at 2
    500.
    33
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    No. 15-40238
    the Court observed that “there [was] no indication that the INS has ceased
    making this sort of determination on a case-by-case basis.” 
    Id. But the
    govern-
    ment has not rebutted the strong presumption of reviewability with clear and
    convincing evidence that, inter alia, it is making case-by-case decisions here.92
    A.
    Title 5 § 701(a)(2) “preclude[s] judicial review of certain categories of
    administrative decisions that courts traditionally have regarded as “committed
    to agency discretion.” Lincoln v. Vigil, 
    508 U.S. 182
    , 191 (1993) (citation omit-
    ted). For example, “an agency’s decision not to institute enforcement proceed-
    ings [is] presumptively unreviewable under § 701(a)(2).” 
    Id. (citation omitted).
    Likewise, “[t]here is no judicial review of agency action ‘where statutes [grant-
    ing agency discretion] are drawn in such broad terms that in a given case there
    is no law to apply,’”93 such as “[t]he allocation of funds from a lump-sum appro-
    priation.” 
    Vigil, 508 U.S. at 192
    .
    1.
    The Secretary has broad discretion to “decide whether it makes sense to
    pursue removal at all”94 and urges that deferred action—a grant of “lawful
    presence” and subsequent eligibility for otherwise unavailable benefits—is a
    92 See, e.g., Gulf Restoration Network v. McCarthy, 
    783 F.3d 227
    , 235 (5th Cir. 2015)
    (Higginbotham, J.) (“[T]here is a ‘strong presumption,’ subject to Congressional language,
    that ‘action taken by a federal agency is reviewable in federal court.’” (quoting RSR Corp. v.
    Donovan, 
    747 F.2d 294
    , 299 n.23 (5th Cir. 1984))).
    93Perales v. Casillas, 
    903 F.2d 1043
    , 1047 (5th Cir. 1990) (alteration in original) (cita-
    tion omitted).
    94Arizona v. United 
    States, 132 S. Ct. at 2499
    (“A principal feature of the removal
    system is the broad discretion exercised by immigration officials. Federal officials, as an
    initial matter, must decide whether it makes sense to pursue removal at all.” (citation
    omitted)).
    34
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    No. 15-40238
    presumptively unreviewable exercise of prosecutorial discretion.95 “The gen-
    eral exception to reviewability provided by § 701(a)(2) for action ‘committed to
    agency discretion’ remains a narrow one, but within that exception are
    included agency refusals to institute investigative or enforcement proceedings,
    unless Congress has indicated otherwise.”96 Where, however, “an agency does
    act to enforce, that action itself provides a focus for judicial review, inasmuch
    as the agency must have exercised its power in some manner. The action at
    least can be reviewed to determine whether the agency exceeded its statutory
    powers.”97
    Part of DAPA involves the Secretary’s decision—at least temporarily—
    not to enforce the immigration laws as to a class of what he deems to be low-
    priority illegal aliens. But importantly, the states have not challenged the pri-
    ority levels he has established,98 and neither the preliminary injunction nor
    compliance with the APA requires the Secretary to remove any alien or to alter
    his enforcement priorities.
    Deferred action, however, is much more than nonenforcement: It would
    affirmatively confer “lawful presence” and associated benefits on a class of
    unlawfully present aliens.             Though revocable, that change in designation
    would trigger (as we have already explained) eligibility for federal benefits—
    95 The dissent misleadingly declares, “In other words, deferred action itself is merely
    a brand of ‘presumptively unreviewable’ prosecutorial discretion.” Dissent at 14. The dissent
    attributes that statement to this panel majority when in fact, as shown above, we accurately
    cite the statement as coming from the Secretary.
    96   
    Chaney, 470 U.S. at 838
    (citation omitted); see 
    Vigil, 508 U.S. at 190
    –91.
    97   
    Chaney, 470 U.S. at 832
    .
    98See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Thomas
    Winkowski, Acting Dir., U.S. Immigration and Customs Enforcement, et al. (Nov. 20, 2014)
    (the “Prioritization Memo”), http://www.dhs.gov/sites/default/files/publications/14_1120_
    memo_prosecutorial_discretion.pdf.
    35
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    for example, under title II and XVIII of the Social Security Act 99—and state
    benefits—for example, driver’s licenses and unemployment insurance100—that
    would not otherwise be available to illegal aliens.101
    The United States maintains that DAPA is presumptively unreviewable
    prosecutorial discretion because “‘lawful presence’ is not a status and is not
    something that the alien can legally enforce; the agency can alter or revoke it
    at any time.”102 The government further contends that “[e]very decision under
    [DAPA] to defer enforcement action against an alien necessarily entails allow-
    ing the individual to be lawfully present . . . . Deferred action under DAPA and
    ‘lawful presence’ during that limited period are thus two sides of the same
    coin.”103
    99 
    See supra
    part I.A. DAPA would also toll the duration of the recipients’ unlawful
    presence under the INA’s reentry bars, which would benefit aliens who receive lawful pres-
    ence as minors because the unlawful-presence clock begins to run only at age eighteen. See
    8 U.S.C. § 1182(a)(9)(B)(iii)(I). Most adult beneficiaries would be unlikely to benefit from
    tolling because, to be eligible for DAPA, one must have continuously resided in the United
    States since before January 1, 2010, and therefore would likely already be subject to the
    reentry bar for aliens who have “been unlawfully present in the United States for one year
    or more.” § 1182(a)(9)(B)(i)(II); see § 1182(a)(9)(C)(i)(I).
    100   
    See supra
    part I.A.
    101  Cf. Memorandum from James Cole, Deputy Att’y Gen., to All U.S. Attorneys
    (Aug. 29,     2013)    (the   “Cole    Memo”),    http://www.justice.gov/iso/opa/resources/
    3052013829132756857467.pdf. The Cole Memo establishes how prosecutorial discretion will
    be used in relation to marihuana enforcement under the Controlled Substances Act. Unlike
    the DAPA Memo, it does not direct an agency to grant eligibility for affirmative benefits to
    anyone engaged in unlawful conduct. As we have explained, to receive public benefits, aliens
    accorded lawful presence must satisfy additional criteria set forth in the various benefit
    schemes, but they nevertheless become eligible to satisfy those criteria. That eligibility is
    itself a cognizable benefit.
    102Supplemental Brief for Appellants at 16. But see 8 U.S.C. § 1201(i) (“After the
    issuance of a visa or other documentation to any alien, the consular officer or the Secretary
    of State may at any time, in his discretion, revoke such visa or other documentation.”);
    § 1227(a)(1)(B) (providing that any alien “whose nonimmigrant visa . . . has been revoked
    under section 1201(i) of this title, is deportable”).
    103   Supplemental Brief for Appellants at 16 (emphasis omitted).
    36
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    Revocability, however, is not the touchstone for whether agency is action
    is reviewable. Likewise, to be reviewable agency action, DAPA need not dir-
    ectly confer public benefits—removing a categorical bar on receipt of those
    benefits and thereby making a class of persons newly eligible for them
    “provides a focus for judicial review.” 
    Chaney, 470 U.S. at 832
    .
    Moreover, if deferred action meant only nonprosecution, it would not
    necessarily result in lawful presence. “[A]lthough prosecutorial discretion is
    broad, it is not ‘unfettered.’”104 Declining to prosecute does not transform pres-
    ence deemed unlawful by Congress into lawful presence and confer eligibility
    for otherwise unavailable benefits based on that change.                      Regardless of
    whether the Secretary has the authority to offer lawful presence and employ-
    ment authorization in exchange for participation in DAPA, his doing so is not
    shielded from judicial review as an act of prosecutorial discretion.
    This evident conclusion is reinforced by the Supreme Court’s description,
    in AAADC, of deferred action as a nonprosecution decision:
    To ameliorate a harsh and unjust outcome, the INS may decline to insti-
    tute proceedings, terminate proceedings, or decline to execute a final
    order of deportation. This commendable exercise in administrative dis-
    cretion, developed without express statutory authorization, originally
    was known as nonpriority and is now designated as deferred action
    . . . . Approval of deferred action status means that . . . no action will
    thereafter be taken to proceed against an apparently deportable alien,
    even on grounds normally regarded as aggravated.[105]
    In their procedural claim, the states do not challenge the Secretary’s decision
    104Wayte v. United States, 
    470 U.S. 598
    , 608 (1985) (quoting United States v. Batchel-
    der, 
    442 U.S. 114
    , 125 (1979)).
    105 
    AAADC, 525 U.S. at 484
    (emphasis added) (quoting 6 CHARLES GORDON, STANLEY
    MAILMAN & STEPHEN YALE-LOEHR, IMMIGRATION LAW AND PROCEDURE § 72.03[2][h]
    (1998)); accord Johns v. Dep’t of Justice, 
    653 F.2d 884
    , 890 (5th Cir. Aug. 1981) (“The Attorney
    General also determines whether (1) to refrain from (or, in administrative parlance, to defer
    in) executing an outstanding order of deportation, or (2) to stay the order of deportation.”
    (footnote omitted)); see also Yoon v. INS, 
    538 F.2d 1211
    , 1213 (5th Cir. 1976) (per curiam).
    37
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    to “decline to institute proceedings, terminate proceedings, or decline to exe-
    cute a final order of deportation,” nor does deferred action mean merely that
    “no action will thereafter be taken to proceed against an apparently deportable
    alien.”106
    Under DAPA, “[d]eferred action . . . means that, for a specified period of
    time, an individual is permitted to be lawfully present in the United States,”107
    a change in designation that confers eligibility for substantial federal and state
    benefits on a class of otherwise ineligible aliens. Thus, DAPA “provides a focus
    for judicial review, inasmuch as the agency must have exercised its power in
    some manner. The action at least can be reviewed to determine whether the
    agency exceeded its statutory powers.”108
    2.
    “The mere fact that a statute grants broad discretion to an agency does
    not render the agency’s decisions completely unreviewable under the ‘commit-
    ted to agency discretion by law’ exception unless the statutory scheme, taken
    together with other relevant materials, provides absolutely no guidance as to
    how that discretion is to be exercised.”109 In 
    Perales, 903 F.2d at 1051
    , we held
    that the INS’s decision not to grant pre-hearing voluntary departures and work
    authorizations to a group of aliens was committed to agency discretion because
    “[t]here are no statutory standards for the court to apply . . . . There is nothing
    106  
    AAADC, 525 U.S. at 484
    (quoting GORDON, MAILMAN & YALE-LOEHR,
    supra note 105).
    107   DAPA Memo at 2 (emphasis added).
    108
    Chaney, 470 U.S. at 832
    . Because the challenged portion of DAPA’s deferred-action
    program is not an exercise of enforcement discretion, we do not reach the issue of whether
    the presumption against review of such discretion is rebutted. See 
    id. at 832–34;
    Adams v.
    Richardson, 
    480 F.2d 1159
    , 1161–62 (D.C. Cir. 1973) (en banc) (per curiam).
    109 
    Perales, 903 F.2d at 1051
    (quoting Robbins v. Reagan, 
    780 F.2d 37
    , 45 (D.C. Cir.
    1985) (per curiam)).
    38
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    in the [INA] expressly providing for the grant of employment authorization or
    pre-hearing voluntary departure to [the plaintiff class of aliens].” Although we
    stated that “the agency’s decision to grant voluntary departure and work
    authorization has been committed to agency discretion by law,” 
    id. at 1045,
    that case involved a challenge to the denial of voluntary departure and work
    authorization.
    Under those facts, Perales faithfully applied Chaney’s presumption
    against judicial review of agency inaction “because there are no meaningful
    standards against which to judge the agency’s exercise of discretion.” 
    Id. at 1047.
    But where there is affirmative agency action—as with DAPA’s issu-
    ance of lawful presence and employment authorization—and in light of the
    INA’s intricate regulatory scheme for changing immigration classifications and
    issuing employment authorization,110 “[t]he action at least can be reviewed to
    determine whether the agency exceeded its statutory powers.”                     
    Chaney, 470 U.S. at 832
    .
    The United States asserts that 8 C.F.R. § 274a.12(c)(14),111 rather than
    DAPA, makes aliens granted deferred action eligible for work authorizations.
    But if DAPA’s deferred-action program must be subjected to notice-and-
    comment, then work authorizations may not be validly issued pursuant to that
    subsection until that process has been completed and aliens have been
    “granted deferred action.” § 274a.12(c)(14).
    Moreover, the government’s limitless reading of that subsection—
    allowing for the issuance of employment authorizations to any class of illegal
    110   See infra part VII.
    111  “An alien who has been granted deferred action, an act of administrative conven-
    ience to the government which gives some cases lower priority, [may be able to obtain work
    authorization upon application] if the alien establishes an economic necessity for employ-
    ment.” 8 C.F.R. § 274a.12(c)(14).
    39
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    aliens whom DHS declines to remove—is beyond the scope of what the INA can
    reasonably be interpreted to authorize, as we will explain.112                    And even
    assuming, arguendo, that the government does have that power, Texas is also
    injured by the grant of lawful presence itself, which makes DAPA recipients
    newly eligible for state-subsidized driver’s licenses.113               As an affirmative
    agency action with meaningful standards against which to judge it, DAPA is
    not an unreviewable “agency action . . . committed to agency discretion by
    law.” § 701(a)(2).
    B.
    The government urges that this case is not justiciable even though “‘a
    federal court’s “obligation”’ to hear and decide cases within its jurisdiction is
    ‘virtually unflagging.’”114      We decline to depart from that well-established
    principle.115 And in invoking our jurisdiction, the states do not demand that
    the federal government “control immigration and . . . pay for the consequences
    of federal immigration policy” or “prevent illegal immigration.”116
    Neither the preliminary injunction nor compliance with the APA
    requires the Secretary to enforce the immigration laws or change his priorities
    The class of aliens eligible for DAPA is not among those classes of aliens identified
    112
    by Congress as eligible for deferred action and work authorization. See infra part VII.
    113   See TEX. DEP’T OF PUB. SAFETY, VERIFYING LAWFUL PRESENCE, supra note 56.
    
    114Lexmark, 134 S. Ct. at 1386
    (quoting Sprint Commc’ns, Inc. v. Jacobs, 
    134 S. Ct. 584
    , 591 (2013)).
    115See Sprint 
    Commc’ns, 134 S. Ct. at 590
    (“Federal courts, it was early and famously
    said, have ‘no more right to decline the exercise of jurisdiction which is given, than to usurp
    that which is not given.’” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))).
    116Texas v. United 
    States, 106 F.3d at 664
    ; see also 
    Sure-Tan, 467 U.S. at 897
    (“[P]ri-
    vate persons . . . have no judicially cognizable interest in procuring enforcement of the immi-
    gration laws . . . .”); 
    Fiallo, 430 U.S. at 792
    (“[T]he power to expel or exclude aliens [is] a
    fundamental sovereign attribute exercised by the Government’s political departments largely
    immune from judicial control.” (quoting Shaughnessy v. United States ex rel. Mezei, 
    345 U.S. 206
    , 210 (1953))).
    40
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    for removal, which have expressly not been challenged.117 Nor have the states
    “merely invited us to substitute our judgment for that of Congress in deciding
    which aliens shall be eligible to participate in [a benefits program].” 
    Diaz, 426 U.S. at 84
    .118 DAPA was enjoined because the states seek an opportunity
    117See Brief for Appellees at 2 (“[T]he district court’s injunction does not touch—and
    this lawsuit has never challenged—the Executive’s separate memorandum establishing three
    categories for removal prioritization, or any decision by the Executive to forego a removal
    proceeding.”).
    118 The main thrust of the dissent could be summarized as claiming that “[i]t’s Con-
    gress’s fault.” The President apparently agrees: As explained by the district court, “it was
    the failure of Congress to enact such a program that prompted [the President] . . . to ‘change
    the law.’” See infra note 200. The dissent opens by blaming Congress for insufficient
    funding―to-wit, “decades of congressional appropriations decisions, which require DHS . . .
    to de-prioritize millions of removable each year due to these resource constraints.” Dissent
    at 5–6 (footnote omitted).
    The dissent’s insistent invocation of what it perceives as Congress’s inadequate fund-
    ing is regrettable and exposes the weakness of the government’s legal position. See, e.g.,
    Dissent at 1 (“unless and until more resources are made available by Congress”); 
    id. (“if Congress
    is able to make more resources for removal available”); 
    id. at 4
    (“given the resource
    constraints faced by DHS”); 
    id. (“to maximize
    the resources that can be devoted to such
    ends”); 
    id. at 5
    (“decades of congressional appropriations decisions”); 
    id. at 6
    (“due to these
    resource constraints”); 
    id. at 7
    n.9 (“”if Congress were to substantially increase the amount
    of funding”); id at 14 (“DHS’s limited resources”); 
    id. at 4
    3 n.55 (“the decades-long failure of
    Congress to fund”); 
    id. at [50]
    (“Congress’s choices as to the level of funding for immigration
    enforcement”).
    The facts, not commentary on political decisions, are what should matter. Thus the
    dissent’s notion that “this case essentially boils down to a policy dispute,” Dissent at 22, far
    misses the mark and avoids having to tackle the hard reality―for the government―of existing
    law. Similarly unimpressive is the dissent’s resort to hyperbole. E.g., Dissent at 10 (“[t]he
    majority’s breathtaking expansion of state standing”); 
    id. at 11
    (“the majority’s sweeping
    ‘special solicitude’ analysis”); 
    id. at 11
    n.14 (“the sweeping language the majority uses
    today”); 
    id. at 4
    2 n.54 (“this radical theory of standing”); id at 47 n.61 (“The majority’s ruling
    . . . is potentially devastating.”).
    The dissent also claims that despite limited funding, “DHS . . . has been removing
    individuals from the United States in record numbers.” Dissent at 20. At the very least, the
    statistics on which the dissent relies are highly misleading. Although DHS claims that a
    record-high of 0.44 million aliens were deported in 2013, it arrives at that number by using
    only “removals” (which are deportations by court order) per year and ignoring “returns”
    (which are deportations achieved without court order). If, more accurately, one counts total
    removals and returns by both ICE and the Border Patrol, deportations peaked at over 1.8
    million in 2000 and plunged to less than half―about 0.6 million―in 2013. In that thirteen-
    year interim, the number of aliens deported per court directive (that is, removed) roughly
    41
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    to be heard through notice and comment, not to have the judiciary formulate
    or rewrite immigration policy. “Consultation between federal and state offi-
    cials is an important feature of the immigration system,”119 and the notice-and-
    comment process, which “is designed to ensure that affected parties have an
    opportunity to participate in and influence agency decision making,” 120 facili-
    tates that communication.
    At its core, this case is about the Secretary’s decision to change the immi-
    gration classification of millions of illegal aliens on a class-wide basis. The
    states properly maintain that DAPA’s grant of lawful presence and accompany-
    ing eligibility for benefits is a substantive rule that must go through notice and
    comment, before it imposes substantial costs on them, and that DAPA is sub-
    stantively contrary to law. The federal courts are fully capable of adjudicating
    those disputes.
    VI.
    Because the interests that Texas seeks to protect are within the INA’s
    zone of interests, and judicial review is available, we address whether Texas
    has established a substantial likelihood of success on its claim that DAPA must
    be submitted for notice and comment. The United States urges that DAPA is
    exempt as an “interpretative rule[], general statement[] of policy, or rule[] of
    agency organization, procedure, or practice.” 5 U.S.C. § 553(b)(A). “In con-
    trast, if a rule is ‘substantive,’ the exemption is inapplicable, and the full pano-
    ply of notice-and-comment requirements must be adhered to scrupulously. The
    doubled from about 0.2 million to 0.44 million. The total number of deportations is at its
    lowest level since the mid-1970’s. U.S. DEP’T OF HOMELAND SEC., 2013 YEARBOOK OF
    IMMIGRATION                   STATISTICS                    103tbl.39             (2014),
    http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf.
    119   Arizona v. United 
    States, 132 S. Ct. at 2508
    .
    120   U.S. Steel Corp. v. EPA, 
    595 F.2d 207
    , 214 (5th Cir. 1979).
    42
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    ‘APA’s notice and comment exemptions must be narrowly construed.’”121
    A.
    The government advances the notion that DAPA is exempt from notice
    and comment as a policy statement.122 We evaluate two criteria to distinguish
    policy statements from substantive rules: whether the rule (1) “impose[s] any
    rights and obligations” and (2) “genuinely leaves the agency and its decision-
    makers free to exercise discretion.”123 There is some overlap in the analysis of
    those prongs “because ‘[i]f a statement denies the decisionmaker discretion in
    the area of its coverage . . . then the statement is binding, and creates rights
    or obligations.’”124 “While mindful but suspicious of the agency’s own charac-
    terization, we . . . focus[] primarily on whether the rule has binding effect on
    agency discretion or severely restricts it.”125 “[A]n agency pronouncement will
    121 Prof’ls & Patients for Customized Care v. Shalala, 
    56 F.3d 592
    , 595 (5th Cir. 1995)
    (footnote omitted) (quoting United States v. Picciotto, 
    875 F.2d 345
    , 347 (D.C. Cir. 1989)).
    122 The government does not dispute that DAPA is a “rule,” which is defined by the
    APA as “an agency statement of general or particular applicability and future effect designed
    to implement, interpret, or prescribe law or policy or describing the organization, procedure,
    or practice requirements of an agency and includes [various substantive agency functions] or
    practices bearing on any of the foregoing.” 5 U.S.C. § 551(4).
    123 Prof’ls & 
    Patients, 56 F.3d at 595
    (quoting Cmty. Nutrition Inst. v. Young, 
    818 F.2d 943
    , 946 (D.C. Cir. 1987) (per curiam)); see also 
    Vigil, 508 U.S. at 197
    (describing general
    statements of policy “as ‘statements issued by an agency to advise the public prospectively of
    the manner in which the agency proposes to exercise a discretionary power.’” (quoting Chrys-
    ler Corp. v. Brown, 
    441 U.S. 281
    , 302 n.31 (1979))); Brown Express, Inc. v. United States,
    
    607 F.2d 695
    , 701 (5th Cir. 1979) (“A general statement of policy is a statement by an admin-
    istrative agency announcing motivating factors the agency will consider, or tentative goals
    toward which it will aim, in determining the resolution of a [s]ubstantive question of
    regulation.”).
    124  Gen. Elec. Co. v. EPA, 
    290 F.3d 377
    , 382 (D.C. Cir. 2002) (quoting McLouth Steel
    Prods. Corp. v. Thomas, 
    838 F.2d 1317
    , 1320 (D.C. Cir. 1988)).
    125 Prof’ls & 
    Patients, 56 F.3d at 595
    (footnote omitted); accord 
    id. (“[W]e are
    to give
    some deference, ‘albeit “not overwhelming,”’ to the agency’s characterization of its own rule.”
    (quoting Cmty. Nutrition 
    Inst., 818 F.2d at 946
    )); Phillips Petroleum Co. v. Johnson, 
    22 F.3d 616
    , 619 (5th Cir. 1994) (“This court, however, must determine the category into which the
    rule falls: ‘[T]he label that the particular agency puts upon its given exercise of admin-
    istrative power is not, for our purposes, conclusive; rather it is what the agency does in fact.’”
    43
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    be considered binding as a practical matter if it either appears on its face to be
    binding, or is applied by the agency in a way that indicates it is binding.” Gen.
    
    Elec., 290 F.3d at 383
    (citation omitted).
    Although the DAPA Memo facially purports to confer discretion,126 the
    district court determined that “[n]othing about DAPA ‘genuinely leaves the
    agency and its [employees] free to exercise discretion,’”127 a factual finding that
    we review for clear error. That finding was partly informed by analysis of the
    implementation of DACA, the precursor to DAPA.128
    Like the DAPA Memo, the DACA Memo instructed agencies to review
    applications on a case-by-case basis and exercise discretion, but the district
    court found that those statements were “merely pretext”129 because only
    about 5% of the 723,000 applications accepted for evaluation had been
    denied,130 and “[d]espite a request by the [district] [c]ourt, the [g]overnment’s
    (alteration in original) (quoting Brown 
    Express, 607 F.2d at 700
    )).
    126 See 
    Crane, 783 F.3d at 254
    –55. In Crane, we held that the plaintiff ICE agents and
    deportation officers had not “demonstrated the concrete and particularized injury required
    to give them standing” to challenge DACA, 
    id. at 247,
    because, inter alia, they had not alleged
    a sufficient factual basis for their claim that an employment action against them was “cer-
    tainly impending” if they “exercise[d] [their] discretion to detain an illegal alien,” 
    id. at 255.
    That conclusion was informed by the express delegation of discretion on the face of the DACA
    Memo and by the fact that no sanctions or warnings had yet been issued. 
    Id. at 2
    54–55. We
    did not hold that DACA was an unreviewable exercise of prosecutorial discretion or that the
    DACA criteria did not have binding or severely restrictive effect on agency discretion. See
    
    id. at 254–55.
             Dist. Ct. 
    Op., 86 F. Supp. 3d at 670
    (second alteration in original) (quoting Prof’ls
    127
    & 
    Patients, 56 F.3d at 595
    ).
    128
    Id. at 5
    79–60. See 3 JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 15.05[3] (2014)
    (“In general, the agency’s past treatment of a rule will often indicate its nature.”).
    129   Dist. Ct. 
    Op., 86 F. Supp. 3d at 669
    n.101.
    130 
    Id. at 609;
    see 
    id. (noting that
    “[i]n response to a Senate inquiry, the USCIS told
    the Senate that the top four reasons for denials were: (1) the applicant used the wrong form;
    (2) the applicant failed to provide a valid signature; (3) the applicant failed to file or complete
    Form I–765 or failed to enclose the fee; and (4) the applicant was below the age of fifteen and
    thus ineligible to participate in the program”); 
    id. at *669
    n.101 (“[A]ll were denied for failure
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    counsel did not provide the number, if any, of requests that were denied [for
    discretionary reasons] even though the applicant met the DACA criteria
    . . . .”131 The finding of pretext was also based on a declaration by Kenneth
    Palinkas, the president of the union representing the USCIS employees pro-
    cessing the DACA applications, that “DHS management has taken multiple
    steps to ensure that DACA applications are simply rubberstamped if the appli-
    cants meet the necessary criteria”;132 DACA’s Operating Procedures, which
    “contain[] nearly 150 pages of specific instructions for granting or denying
    to meet the criteria (or ‘rejected’ for technical filing errors, errors in filling out the form or
    lying on the form, and failures to pay fees), or for fraud.”).
    Relying on the Neufeld declaration, the dissent tries to make much of the distinction
    between denials and rejections. Dissent at 37. The district court did in fact mistakenly write
    “denials” (used to describe applications refused for failure to meet the criteria) in the above
    quoted passage where the USCIS response actually said “rejections” (applications refused for
    procedural defects). USCIS reported that approximately 6% of DACA applicants were
    rejected and that an additional 4% were denied. USCIS does not draw a distinction between
    denials of applicants who did not meet the criteria and denials of those who met the criteria
    but were refused deferred action as a result of a discretionary choice.
    USCIS could not produce any applications that satisfied all of the criteria but were
    refused deferred action by an exercise of discretion. 
    Id. at 669
    n.101 (“[A]ll were denied for
    failure to meet the criteria or ‘rejected’ for technical filing errors, errors in filling out the form
    or lying on the form, and failures to pay fees), or for fraud.”).” Given that the government
    offered no evidence as to the bases for other denials, it was not error―clear or otherwise―for
    the district court to conclude that DHS issued DACA denials under mechanical formulae.
    131 Dist. Ct. 
    Op., 86 F. Supp. 3d at 609
    . The parties had ample opportunity to inform
    the district court, submitting over 200 pages of briefing over a two-month period with more
    than 80 exhibits. The court held a hearing on the motion for a preliminary injunction, heard
    extensive argument from both sides, and “specifically asked for evidence of individuals who
    had been denied for reasons other than not meeting the criteria or technical errors with the
    form and/or filing.” 
    Id. at 669
    n.101.
    132   Dist. Ct. 
    Op., 86 F. Supp. 3d at 609
    –10.
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    deferred action”;133 and some mandatory language in the DAPA Memo itself.134
    In denying the government’s motion for a stay of the injunction, the district
    court further noted that the President had made public statements suggesting
    that in reviewing applications pursuant to DAPA, DHS officials who “don’t fol-
    low the policy” will face “consequences,” and “they’ve got a problem.”135
    
    Id. at 669
    (footnote omitted). For example, the DACA National Standard Operating
    133
    Procedures (“SOP”) specifically directs officers on which evidence an applicant is required to
    submit, what evidence is to be considered, “the weight to be given” to evidence, and the
    standards of proof required to grant or deny an application. U.S. DEP’T OF HOMELAND SEC.,
    NATIONAL STANDARD OPERATING PROCEDURES: DACA 42 (2012). To elaborate: An affidavit
    alone may not support an application, and DACA applicants must prove education and age
    criteria by documentary evidence. 
    Id. at 8–10.
    The SOP also mandates, however, that “[o]ffi-
    cers will NOT deny a DACA request solely because the DACA requestor failed to submit
    sufficient evidence with the request . . . officers will issue a [Request for Evidence (RFE)]
    . . . whenever possible.” 
    Id. at 42.
           DHS internal documents further provide that “a series of RFE [ ] templates have been
    developed and must be used,” and those documents remind repeatedly that “[u]se of these
    RFE templates is mandatory.” (Emphasis added.) And “[w]hen an RFE is issued, the
    response time given shall be 87 days.” SOP at 42.
    These specific evidentiary standards and RFE steps imposed by the SOP are just
    examples the district court had before it when it concluded that DACA and DAPA “severely
    restrict[ ]” agency discretion. Prof’ls & 
    Patients, 56 F.3d at 595
    . Far from being clear error,
    such a finding was no error whatsoever.
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 648
    –49, 671 n.103. There the district court exhib-
    134
    ited its keen awareness of the DAPA Memo by quoting the following from it:
    I [the Secretary] hereby direct USCIS to establish a process, similar to DACA . . . .
    Applicants must file . . . . Applicants must also submit . . . . [Applicants] shall also
    be eligible . . . . Deferred action granted pursuant to the program shall be for a period
    of three years. . . . As with DACA, the above criteria are to be considered for all
    individuals . . . . ICE and CBP are instructed to immediately begin identifying per-
    sons in their custody, as well as newly encountered individuals, who meet the above
    criteria . . . . ICE is further instructed to review pending removal cases . . . . The
    USCIS process shall also be available to individuals subject to final orders of
    removal.
    
    Id. at 611–12
    (paragraph breaks omitted.) This detailed explication of the DAPA Memo flies
    in the face of the dissent’s unjustified critique that the district court “eschew[ed] the plain
    language of the [DAPA] Memorandum.” Dissent at 31.
    135   Texas v. United States, No. B-14-254, 
    2015 WL 1540022
    , at *3 (S.D. Tex. Apr. 7,
    2015).
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    The DACA and DAPA Memos purport to grant discretion, but a rule can
    be binding if it is “applied by the agency in a way that indicates it is binding,”136
    and there was evidence from DACA’s implementation that DAPA’s discretion-
    ary language was pretextual. For a number of reasons, any extrapolation from
    DACA must be done carefully.137
    First, DACA involved issuing benefits to self-selecting applicants, and
    persons who expected to be denied relief would seem unlikely to apply. But
    the issue of self-selection is partially mitigated by the finding that “the [g]ov-
    ernment has publicly declared that it will make no attempt to enforce the law
    against even those who are denied deferred action (absent extraordinary
    circumstances).” Dist. Ct. 
    Op., 86 F. Supp. 3d at 663
    (footnote omitted).
    Second, DACA and DAPA are not identical: Eligibility for DACA was
    136 Gen. 
    Elec., 290 F.3d at 383
    ; accord McLouth 
    Steel, 838 F.2d at 1321
    –22 (reviewing
    historical conformity as part of determination of whether rule was substantive or non-binding
    policy, despite language indicating that it was policy statement); 
    id. at 1321
    (“More critically
    than EPA’s language [,] . . . its later conduct applying it confirms its binding character.”).
    137 The dissent, citing National Mining Ass’n v. McCarthy, 
    758 F.3d 243
    , 253 (D.C. Cir.
    2014), criticizes the states and the district court for enjoining DAPA without “an early snap-
    shot” of its implementation. Dissent at 32. First, the dissent overlooks a fundamental prin-
    ciple of preliminary injunctions: An injunction is of no help if one must wait to suffer injury
    before the court grants it. United States v. Emerson, 
    270 F.3d 203
    , 262 (5th Cir. 2001) (“[T]he
    injury need not have been inflicted when application [for the injunction] is made or be certain
    to occur[.]”).
    Second, the dissent assumes the conclusion of National Mining—that the agency
    action in question is not subject to pre-enforcement review—is applicable here and asserts
    that we need an “early snapshot” of DAPA enforcement. The two cases are easily distin-
    guished. The court found EPA’s “Final Guidance” exempt from pre-enforcement review
    because it had “no legal impact.” National 
    Mining, 758 F.3d at 253
    ; see 
    id., at 252
    (“The most
    important factor concerns the actual legal effect (or lack thereof) of the agency action on
    regulated entities. . . . As a legal matter, the Final Guidance is meaningless . . . [and] has
    no legal impact.”
    DAPA, by contrast, has an effect on regulated entities (i.e. illegal aliens). DAPA
    removes a categorical bar to illegal aliens who are receiving state and federal benefits, so it
    places a cost on the states. The states are not required to suffer the injury of that legal impact
    before seeking an injunction. See 
    id. 252. 47
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    restricted to a younger and less numerous population,138 which suggests that
    DACA applicants are less likely to have backgrounds that would warrant a
    discretionary denial. Further, the DAPA Memo contains additional discretion-
    ary criteria: Applicants must not be “an enforcement priority as reflected in
    the [Prioritization Memo]; and [must] present no other factors that, in the exer-
    cise of discretion, makes the grant of deferred action inappropriate.” DAPA
    Memo at 4. But despite those differences, there are important similarities:
    The Secretary “direct[ed] USCIS to establish a process, similar to DACA, for
    exercising prosecutorial discretion,” 
    id. (emphasis added),
    and there was evi-
    dence that the DACA application process itself did not allow for discretion,
    regardless of the rates of approval and denial.139
    Instead of relying solely on the lack of evidence that any DACA appli-
    cation had been denied for discretionary reasons, the district court found pre-
    text for additional reasons. It observed that “the ‘Operating Procedures’ for
    implementation of DACA contains nearly 150 pages of specific instructions for
    granting or denying deferred action to applicants” and that “[d]enials are
    Approximately 1.2 million illegal aliens are eligible for DACA and 4.3 million for
    138
    DAPA. Dist. Ct. 
    Op., 86 F. Supp. 3d at 609
    , 670.
    139 Despite these differences and the dissent’s protestations to the contrary (see, e.g.,
    Dissent at 34–38), DACA is an apt comparator to DAPA. The district court considered the
    DAPA Memo’s plain language, in which the Secretary equates the DACA and DAPA proce-
    dure, background checks, fee exemptions, eligibility for work authorizations, durations of
    lawful presence and work authorization, and orders DHS to establish, for DAPA, processes
    similar to those for DACA:
    In order to align the DACA program more closely with the other deferred action
    authorization outlined below, . . . I hereby direct USCIS to establish a process,
    similar to DACA . . . . There will be no fee waivers, and like DACA . . . . As with
    DACA, the above criteria are to be considered for all individuals . . . .
    DAPA Memo at 4–5. See Dist. Ct. 
    Op., 86 F. Supp. 3d at 610
    –11. The district court’s conclu-
    sion that DACA and DAPA would be applied similarly, based as it was in part on the mem-
    orandum’s plain language, was not clearly erroneous and indeed was not error under any
    standard of review.
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    recorded in a ‘check the box’ standardized form, for which USCIS personnel are
    provided templates. Certain denials of DAPA must be sent to a supervisor for
    approval[, and] there is no option for granting DAPA to an individual who does
    not meet each criterion.” Dist. Ct. 
    Op., 86 F. Supp. 3d at 669
    (footnotes omit-
    ted). The finding was also based on the declaration from Palinkas that, as with
    DACA, the DAPA application process itself would preclude discretion: “[R]out-
    ing DAPA applications through service centers instead of field offices . . . cre-
    ated an application process that bypasses traditional in-person investigatory
    interviews with trained USCIS adjudications officers” and “prevents officers
    from conducting case-by-case investigations, undermines officers’ abilities to
    detect fraud and national-security risks, and ensures that applications will be
    rubber-stamped.” See 
    id. at 6
    09–10 (citing that declaration).
    As the government points out, there was conflicting evidence on the
    degree to which DACA allowed for discretion. Donald Neufeld, the Associate
    Director for Service Center Operations for USCIS, declared that “deferred
    action under DACA is a . . . case-specific process” that “necessarily involves the
    exercise of the agency’s discretion,” and he purported to identify several
    instances of discretionary denials.140 Although Neufeld stated that approxi-
    mately 200,000 requests for additional evidence had been made upon receipt
    of DACA applications, the government does not know the number, if any, that
    related to discretionary factors rather than the objective criteria. Similarly,
    140 The states properly maintain that those denials were not discretionary but instead
    were required because of failures to meet DACA’s objective criteria. For example, Neufeld
    averred that some discretionary denials occurred because applicants “pose[d] a public safety
    risk,” “[were] suspected of gang membership or gang-related activity, had a series of arrests
    without convictions” or “ongoing criminal investigations.” As the district court aptly noted,
    however, those allegedly discretionary grounds fell squarely within DACA’s objective criteria
    because DACA explicitly incorporated the enforcement priorities articulated in the DACA
    Operation Instructions and the memorandum styled Policies for Apprehension, Detention,
    and Removal of Undocumented Immigrants. Dist. Ct. 
    Op., 86 F. Supp. 3d at 669
    n.101.
    49
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    the government did not provide the number of cases that service-center offi-
    cials referred to field offices for interviews.141
    Although the district court did not make a formal credibility determina-
    tion or hold an evidentiary hearing on the conflicting statements by Neufeld
    and Palinkas, the record indicates that it did not view the Neufeld declaration
    as creating a material factual dispute.142 Further, the government did not seek
    an evidentiary hearing, nor does it argue on appeal that it was error not to
    conduct such a hearing. Reviewing for clear error, we conclude that the states
    have established a substantial likelihood that DAPA would not genuinely leave
    the agency and its employees free to exercise discretion.
    B.
    A binding rule is not required to undergo notice and comment if it is one
    “of agency organization, procedure, or practice.” § 553(b)(A). “[T]he substan-
    tial impact test is the primary means by which [we] look beyond the label ‘pro-
    cedural’ to determine whether a rule is of the type Congress thought
    appropriate for public participation.”143                “An agency rule that modifies
    141 The United States was also given the chance to show that it planned to put DAPA
    into effect in a manner different from how it implemented DACA; it failed to take advantage
    of that opportunity. Further, after assuring the district court that “[USCIS] does not intend
    to entertain requests for deferred action under the challenged policy until February 18, 2015,”
    the government later admitted to having approved dozens of DAPA applications and three-
    year employment authorization to more than 100,000 aliens satisfying the original DACA
    criteria; the government could not demonstrate which applicants, if any, were rejected on
    purely discretionary grounds, as distinguished from failure to meet the requirements set
    forth in the memoranda.
    142After a hearing on the preliminary injunction, the government filed a sur-reply
    that included the Neufeld declaration. The government did not seek an evidentiary hearing,
    but the states requested one if the “new declarations create a fact dispute of material
    consequence to the motion.” No such hearing was held, and the court cited the Palinkas
    declaration favorably, e.g., Dist. Ct. 
    Op., 86 F. Supp. 3d at 609
    –10, 613 n.13, 669 n.101, yet
    described other sources as providing insufficient detail, e.g., 
    id. at 6
    69 n.101.
    143   U.S. Dep’t of Labor v. Kast Metals Corp., 
    744 F.2d 1145
    , 1153 (5th Cir. 1984); accord
    50
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    substantive rights and interests can only be nominally procedural, and the
    exemption for such rules of agency procedure cannot apply.”144 DAPA undoubt-
    edly meets that test—conferring lawful presence on 500,000 illegal aliens
    residing in Texas forces the state to choose between spending millions of
    dollars to subsidize driver’s licenses and amending its statutes.145
    The District of Columbia Circuit applies a more intricate test for distin-
    guishing between procedural and substantive rules.146 The court first looks at
    the “‘effect on those interests ultimately at stake in the agency proceeding.’
    Hence, agency rules that impose ‘derivative,’ ‘incidental,’ or ‘mechanical’
    burdens upon regulated individuals are considered procedural, rather than
    substantive.”147
    Further, “a procedural rule generally may not ‘encode [] a substantive
    value judgment or put[] a stamp of approval or disapproval on a given type of
    
    STEIN, supra
    , §15.05[5] (“Procedural and practice rules have been distinguished from sub-
    stantive rules by applying the substantial impact test.”).
    144   Kast 
    Metals, 744 F.2d at 1153
    ; accord Brown 
    Express, 607 F.2d at 701
    –03.
    145See Avoyelles Sportsmen’s League, Inc. v. Marsh, 
    715 F.2d 897
    , 908 (5th Cir. 1983)
    (“[Substantive] rules . . . grant rights, impose obligations, or produce other significant effects
    on private interests. They also narrowly constrict the discretion of agency officials by largely
    determining the issue addressed.” (omission in original) (quoting Batterton v. Marshall,
    
    648 F.2d 694
    (D.C. Cir. 1980))).
    146 Compare Kaspar Wire Works, Inc. v. Sec’y of Labor, 
    268 F.3d 1123
    , 1132 (D.C. Cir.
    2001) (recognizing that the D.C. Circuit “has expressly rejected” “the Fifth Circuit’s ‘substan-
    tial impact’ standard for notice and comment requirements”), with City of Arlington v. FCC,
    
    668 F.3d 229
    , 245 (5th Cir. 2012) (“The purpose of notice-and-comment rulemaking is to
    assure fairness and mature consideration of rules having a substantial impact on those reg-
    ulated.” (quoting United States v. Johnson, 
    632 F.3d 912
    , 931 (5th Cir. 2011))), aff’d on other
    grounds, 
    133 S. Ct. 1863
    (2013), and Phillips 
    Petroleum, 22 F.3d at 620
    (reaffirming sub-
    stantial-impact test announced in Brown Express).
    147Nat’l Sec. Counselors v. CIA, 
    931 F. Supp. 2d 77
    , 107 (D.D.C. 2013) (citation omit-
    ted) (quoting Neighborhood TV Co. v. FCC, 
    742 F.2d 629
    , 637 (D.C. Cir. 1984); Am. Hosp.
    Ass’n v. Bowen, 
    834 F.2d 1037
    , 1051 (D.C. Cir. 1987)).
    51
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    behavior,’”148 but “the fact that the agency’s decision was based on a value
    judgment about procedural efficiency does not convert the resulting rule into a
    substantive one.”149 “A corollary to this principle is that rules are generally
    considered procedural so long as they do not ‘change the substantive standards
    by which the [agency] evaluates’ applications which seek a benefit that the
    agency has the power to provide.”150
    Applying those considerations to DAPA yields the same result as does
    our substantial-impact test. Although the burden imposed on Texas is deriv-
    ative of conferring lawful presence on beneficiaries, DAPA establishes “‘the
    substantive standards by which the [agency] evaluates applications’ which
    seek a benefit that the agency [purportedly] has the power to provide”—a criti-
    cal fact requiring notice and comment.151
    Thus, DAPA is analogous to “the rules [that] changed the substantive
    criteria for [evaluating station allotment counter-proposals]” in Reeder v. FCC,
    
    865 F.2d 1298
    , 1305 (D.C. Cir. 1989) (per curiam), holding that notice and com-
    ment was required. In contrast, the court in JEM 
    Broadcasting, 22 F.3d at 327
    , observed that “[t]he critical fact here, however, is that the ‘hard look’
    rules did not change the substantive standards by which the FCC evaluates
    license applications,” such that the rules were procedural. Further, receipt of
    DAPA benefits implies a “stamp of approval” from the government and
    “encodes a substantive value judgment,” such that the program cannot be
    Nat’l Sec. 
    Counselors, 931 F. Supp. 2d at 107
    (alterations in original) (quoting Am.
    148
    
    Hosp., 834 F.2d at 1047
    ).
    149   
    Id. (quoting James
    V. Hurson Assocs. v. Glickman, 
    229 F.3d 277
    , 282 (D.C. Cir.
    2000)).
    
    Id. (alteration in
    original) (quoting JEM Broad. Co. v. FCC, 
    22 F.3d 320
    , 327 (D.C.
    150
    Cir. 1994)).
    151   
    Id. (first alteration
    in original) (quoting JEM 
    Broad., 22 F.3d at 327
    ).
    52
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    considered procedural. Am. 
    Hosp., 834 F.2d at 1047
    .
    C.
    Section 553(a)(2) exempts rules from notice and comment “to the extent
    that there is involved . . . a matter relating to . . . public property, loans, grants,
    benefits, or contracts.” To avoid “carv[ing] the heart out of the notice provisions
    of Section 553”,152 the courts construe the public-benefits exception very nar-
    rowly as applying only to agency action that “clearly and directly relate[s] to
    ‘benefits’ as that word is used in section 553(a)(2).”153
    DAPA does not “clearly and directly” relate to public benefits as that
    term is used in § 553(a)(2). That subsection suggests that “rulemaking require-
    ments for agencies managing benefit programs are . . . voluntarily imposed,”154
    but USCIS—the agency tasked with evaluating DAPA applications—is not an
    agency managing benefit programs. Persons who meet the DAPA criteria do
    not directly receive the kind of public benefit that has been recognized, or was
    likely to have been included, under this exception.155
    152 Hous. Auth. of Omaha v. U.S. Hous. Auth., 
    468 F.2d 1
    , 9 (8th Cir. 1972) (“The
    exemptions of matters under Section 553(a)(2) relating to ‘public benefits,’ could conceivably
    include virtually every activity of government. However, since an expansive reading of the
    exemption clause could easily carve the heart out of the notice provisions of Section 553, it is
    fairly obvious that Congress did not intend for the exemptions to be interpreted that
    broadly.”).
    153   Baylor Univ. Med. Ctr. v. Heckler, 
    758 F.2d 1052
    , 1061 (5th Cir. 1985).
    154   Alcaraz v. Block, 
    746 F.2d 593
    , 611 (9th Cir. 1984).
    155 See e.g., 
    Vigil, 508 U.S. at 184
    , 196 (clinical services provided by Indian Health
    Service for handicapped children); Hoerner v. Veterans Admin., No. 88-3052, 
    1988 WL 97342
    ,
    at *1–2 & n.10 (4th Cir. July 8, 1988) (per curiam) (unpublished) (benefits for veterans);
    Baylor Univ. Med. 
    Ctr., 758 F.2d at 1058
    –59 (Medicare reimbursement regulations issued by
    Secretary of Health and Human Services); Rodway v. U.S. Dep’t of Agric., 
    514 F.2d 809
    , 813
    (D.C. Cir. 1975) (food stamp allotment regulations). The Departments of Agriculture, Health
    and Human Services, and Labor have waived the exemption for matters relating to public
    property, loans, grants, benefits, or contracts. See 29 C.F.R. § 2.7 (Department of Labor);
    Public Participation in Rule Making, 36 Fed. Reg. 13,804, 13,804 (July 24, 1971) (Department
    of Agriculture); Public Participation in Rule Making, 36 Fed. Reg. 2532, 2532 (Jan. 28, 1971)
    53
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    In summary, the states have established a substantial likelihood of suc-
    cess on the merits of their procedural claim. We proceed to address whether,
    in addition to that likelihood on the merits, the states make the same showing
    on their substantive APA claim.156
    VII.
    A “reviewing court shall . . . hold unlawful and set aside agency action
    . . . found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise
    not in accordance with law . . . [or] (C) in excess of statutory jurisdiction,
    authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
    Although the district court enjoined DAPA solely on the basis of the procedural
    APA claim, “it is an elementary proposition, and the supporting cases too
    numerous to cite, that this court may affirm the district court’s judgment on
    any grounds supported by the record.”157                  Therefore, as an alternate and
    additional ground for affirming the injunction, we address this substantive
    issue, which was fully briefed in the district court.158
    Assuming arguendo that Chevron159 applies,160 we first “ask whether
    (Department of Health and Human Services, then known as Health, Education, and Welfare).
    156We reiterate that DAPA is much more than a nonenforcement policy, which pre-
    sumptively would be committed to agency discretion. Therefore, even where a party has
    standing and is within the requisite zone of interests, a traditional nonenforcement policy
    would not necessarily be subject to notice and comment just because DAPA must undergo
    notice-and-comment review.
    157 Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 
    579 F.3d 502
    , 506 (5th Cir.
    2009) (citation and internal quotation marks omitted).
    158 “This circuit follows the rule that alternative holdings are binding precedent and
    not obiter dictum.” United States v. Potts, 
    644 F.3d 233
    , 237 n.3 (5th Cir. 2011) (citation and
    internal quotation marks omitted). At oral argument, the parties agreed that no further
    factual development is needed to resolve the substantive APA challenge.
    159   Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 
    467 U.S. 837
    (1984).
    160   “[T]he fact that the Agency previously reached its interpretation through means
    54
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    Congress has ‘directly addressed the precise question at issue.’” 161 It has.
    “Federal governance of immigration and alien status is extensive and com-
    plex.” Arizona v. United 
    States, 132 S. Ct. at 2499
    . The limited ways in which
    illegal aliens can lawfully reside in the United States reflect Congress’s con-
    cern that “aliens have been applying for and receiving public benefits from
    Federal, State, and local governments at increasing rates,” 8 U.S.C. § 1601(3),
    and that “[i]t is a compelling government interest to enact new rules for eligi-
    bility and sponsorship agreements in order to assure that aliens be self-reliant
    in accordance with national immigration policy,” § 1601(5).
    In specific and detailed provisions, the INA expressly and carefully pro-
    vides legal designations allowing defined classes of aliens to be lawfully
    present162 and confers eligibility for “discretionary relief allowing [aliens in
    less formal than ‘notice and comment’ rulemaking does not automatically deprive that inter-
    pretation of the judicial deference otherwise its due.” Barnhart v. Walton, 
    535 U.S. 212
    , 221
    (2002) (citation omitted). Instead, we consider factors such as “the interstitial nature of the
    legal question, the related expertise of the Agency, the importance of the question to admin-
    istration of the statute, the complexity of that administration, and the careful consideration
    the Agency has given the question over a long period of time . . . .” 
    Id. We need
    not decide
    whether DHS’s interpretation satisfies that test, however, because, as we explain, the agency
    cannot prevail even under Chevron.
    Chevron deference requires the courts to accept an agency’s reasonable construction
    of a statute as long as it is “not patently inconsistent with the statutory scheme.” Am. Air-
    lines, Inc. v. Dep’t of Transp., 
    202 F.3d 788
    , 813 (5th Cir. 2000). As explained below, we
    decide that, assuming Chevron deference does apply, DAPA is not a reasonable construction
    of the INA, because it is “manifestly contrary” to the INA statutory scheme. Mayo Found.
    for Med. Educ. & Research v. United States, 
    562 U.S. 44
    , 53 (2011).
    An agency construction that is manifestly contrary to a statutory scheme could not be
    persuasive under the test in Skidmore v. Swift & Co., 
    323 U.S. 134
    (1944), a test that affords
    agency constructions less deference than does Chevron. See Gonzales v. Oregon, 
    546 U.S. 243
    , 256 (2006) (providing that under Skidmore, an “interpretation is entitled to respect only
    to the extent it has the power to persuade”). Therefore, our decision to forego discussion of
    the Walton factors is sensible. See Griffon v. U.S. Dep’t of Health & Human Servs., 
    802 F.2d 146
    , 148 n.3 (5th Cir. 1986) (noting that where an interpretive rule is unreasonable, “there
    is no need to decide whether Chevron or a less exacting standard applies”).
    161   Mayo 
    Found., 562 U.S. at 52
    (quoting 
    Chevron, 467 U.S. at 842
    ).
    162   E.g., lawful-permanent-resident (“LPR”) status, see 8 U.S.C. §§ 1101(a)(20), 1255;
    55
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    deportation proceedings] to remain in the country.”163 Congress has also iden-
    tified narrow classes of aliens eligible for deferred action, including certain
    petitioners for immigration status under the Violence Against Women Act of
    1994,164 immediate family members of lawful permanent residents (“LPRs”)
    killed by terrorism,165 and immediate family members of LPRs killed in combat
    and granted posthumous citizenship.166 Entirely absent from those specific
    classes is the group of 4.3 million illegal aliens who would be eligible for lawful
    presence under DAPA were it not enjoined. See DAPA Memo at 4.
    Congress has enacted an intricate process for illegal aliens to derive a
    lawful immigration classification from their children’s immigration status: In
    general, an applicant must (i) have a U.S. citizen child who is at least twenty-
    one years old, (ii) leave the United States, (iii) wait ten years, and then
    (iv) obtain one of the limited number of family-preference visas from a United
    States consulate.167 Although DAPA does not confer the full panoply of benefits
    nonimmigrant status, see §§ 1101(a)(15), 1201(a)(1); refugee and asylum status, see
    §§ 1101(a)(42), 1157–59, 1231(b)(3); humanitarian parole, see § 1182(d)(5); temporary pro-
    tected status, see § 1254a. Cf. §§ 1182(a) (inadmissible aliens), 1227(a)–(b) (deportable
    aliens).
    163Arizona v. United 
    States, 132 S. Ct. at 2499
    (citing 8 U.S.C. §§ 1158 (asylum), 1229b
    (cancellation of removal), 1229c (voluntary departure)); see also § 1227(d) (administrative
    stays of removal for T- and U-visa applicants (victims of human trafficking, or of various
    serious crimes, who assist law enforcement)).
    164 Pub. L. No. 103-322, tit. IV, 108 Stat. 1902 (codified as amended in scattered sec-
    tions of the U.S. Code). See 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV).
    165   USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361.
    166 National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136,
    § 1703(c)–(d), 117 Stat. 1392, 1694–95; see also 8 U.S.C. § 1227(d)(2) (specifying that “[t]he
    denial of a request for an administrative stay of removal [for T- and U-visa applicants] shall
    not preclude the alien from applying for . . . deferred action, or a continuance or abeyance of
    removal proceedings under any other provision of the immigration laws . . . .”).
    167See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(II), 1201(a), 1255; see Scialabba v.
    Cuellar de Osorio, 
    134 S. Ct. 2191
    , 2199 (2014) (recognizing that legal immigration “takes
    time—and often a lot of it. . . . After a sponsoring petition is approved but before a visa
    application can be filed, a family-sponsored immigrant may stand in line for years—or even
    56
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    that a visa gives, DAPA would allow illegal aliens to receive the benefits of
    lawful presence solely on account of their children’s immigration status with-
    out complying with any of the requirements, enumerated above, that Congress
    has deliberately imposed. DAPA requires only that prospective beneficiaries
    “have . . . a son or daughter who is a U.S. citizen or lawful permanent
    resident”—without regard to the age of the child—and there is no need to leave
    the United States or wait ten years168 or obtain a visa.169 Further, the INA
    does not contain a family-sponsorship process for parents of an LPR child, 170
    but DAPA allows a parent to derive lawful presence from his child’s LPR
    status.
    The INA authorizes cancellation of removal and adjustment of status if,
    inter alia, “the alien has been physically present in the United States for a
    continuous period of not less than 10 years immediately preceding the date of
    such application” and if “removal would result in exceptional and extremely
    unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the
    United States or an alien lawfully admitted for permanent residence.”
    8 U.S.C. § 1229b(b)(1)(A) (emphasis added). Although LPR status is more sub-
    stantial than is lawful presence, § 1229b(b)(1) is the most specific delegation of
    authority to the Secretary to change the immigration classification of remova-
    ble aliens that meet only the DAPA criteria and do not fit within the specific
    decades—just waiting for an immigrant visa to become available.”).
    168 Although “[t]he Attorney General has sole discretion to waive [the ten-year reentry
    bar] in the case of an immigrant who is the spouse or son or daughter of a United States
    citizen or of an alien lawfully admitted for permanent residence, if it is established to the
    satisfaction of the Attorney General that the refusal of admission to such immigrant alien
    would result in extreme hardship to the citizen or lawfully resident spouse or parent of such
    alien,” § 1182(a)(9)(B)(v) (emphasis added), there is no such provision for waiving the reentry
    bar for parents of U.S. citizen or LPR children.
    169   DAPA Memo at 4.
    170   See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1152(a)(4), 1153(a).
    57
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    categories set forth in § 1229b(b)(2)–(6).
    Instead of a ten-year physical-presence period, DAPA grants lawful pres-
    ence to persons who “have continuously resided in the United States since
    before January 1, 2010,” and there is no requirement that removal would result
    in exceptional and extremely unusual hardship. DAPA Memo at 4. Although
    the Secretary has discretion to make immigration decisions based on humani-
    tarian grounds, that discretion is conferred only for particular family relation-
    ships and specific forms of relief—none of which includes granting lawful pres-
    ence, on the basis of a child’s immigration status, to the class of aliens that
    would be eligible for DAPA.171
    The INA also specifies classes of aliens eligible172 and ineligible173 for
    work authorization, including those “eligible for work authorization and
    deferred action”―with no mention of the class of persons whom DAPA would
    make eligible for work authorization. Congress “‘forcefully’ made combating
    the employment of illegal aliens central to ‘[t]he policy of immigration law,’”174
    in part by “establishing an extensive ‘employment verification system,’
    designed to deny employment to aliens who . . . are not lawfully present in the
    171  See, e.g., 8 U.S.C. §§ 1182(a)(9)(B)(v), (C)(iii) (authorizing waiver of reentry bars for
    particular classes of inadmissible aliens), 1227(a)(1)(E)(iii) (authorizing waiver of inadmissi-
    bility for smuggling by particular classes of aliens).
    172 E.g., 8 U.S.C. §§ 1101(i)(2) (human-trafficking victims in lawful-temporary-
    resident status pursuant to a T-visa), 1105a(a) (nonimmigrant battered spouses),
    1154(a)(1)(K) (grantees of self-petitions under the Violence Against Women Act),
    1158(c)(1)(B), (d)(2) (asylum applicants and grantees), 1160(a)(4) (certain agricultural work-
    ers in lawful-temporary-resident status), 1184(c)(2)(E), (e)(6) (spouses of L- and E-visa
    holders), (p)(3)(B) (certain victims of criminal activity in lawful-temporary-resident status
    pursuant to a U visa), 1254a(a)(1)(B) (temporary-protected status holders), 1255a(b)(3)(B)
    (temporary-resident status holders).
    E.g., 8 U.S.C. §§ 1226(a)(3) (limits on work authorizations for aliens with pending
    173
    removal proceedings), 1231(a)(7) (limits on work authorizations for aliens ordered removed).
    174 Hoffman Plastic Compounds, Inc. v. NLRB, 
    535 U.S. 137
    , 147 (2002) (alteration in
    original) (quoting INS v. Nat’l Ctr. for Immigrants’ Rights, Inc., 
    502 U.S. 183
    , 194 n.8 (1991)).
    58
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    United States.”175
    The INA’s careful employment-authorization scheme “protect[s] against
    the displacement of workers in the United States,”176 and a “primary purpose
    in restricting immigration is to preserve jobs for American workers.”177 DAPA
    would dramatically increase the number of aliens eligible for work authoriza-
    tion, thereby undermining Congress’s stated goal of closely guarding access to
    work authorization and preserving jobs for those lawfully in the country.
    DAPA would make 4.3 million otherwise removable aliens eligible for
    lawful presence, employment authorization, and associated benefits, and “we
    must be guided to a degree by common sense as to the manner in which Con-
    gress is likely to delegate a policy decision of such economic and political
    magnitude to an administrative agency.”178 DAPA undoubtedly implicates
    “question[s] of deep ‘economic and political significance’ that [are] central to
    this statutory scheme; had Congress wished to assign that decision to an
    agency, it surely would have done so expressly.”179 But assuming arguendo
    that Chevron applies and that Congress has not directly addressed the precise
    175   
    Id. (emphasis added)
    (citation omitted) (quoting 8 U.S.C. § 1324a(a)(1)).
    176Nat’l Ctr. for Immigrants’ 
    Rights, 502 U.S. at 194
    (quoting Powers and Duties of
    Service Officers; Availability of Service Records; Employment Authorization; Excludable or
    Deportable Aliens, 48 Fed. Reg. 51,142, 51,142 (Nov. 7, 1983)).
    177Id. (quoting 
    Sure-Tan, 467 U.S. at 893
    ); see 8 U.S.C § 1182(a)(5)(A)(i) (listing among
    the classes of excludable aliens those who “seek[] to enter the United States for the purpose
    of performing skilled or unskilled labor . . . , unless the Secretary of Labor has determined
    and certified to the Secretary of State and the Attorney General that—(I) there are not suf-
    ficient workers who are able, willing, qualified (or equally qualified in the case of an alien
    described in clause (ii)) and available at the time of application for a visa and admission to
    the United States and at the place where the alien is to perform such skilled or unskilled
    labor, and (II) the employment of such alien will not adversely affect the wages and working
    conditions of workers in the United States similarly employed”).
    178   FDA v. Brown & Williamson Tobacco Corp., 
    529 U.S. 120
    , 133 (2000).
    King v. Burwell, 
    135 S. Ct. 2480
    , 2489 (2015) (quoting Util. Air Regulatory Grp. v.
    179
    EPA, 
    134 S. Ct. 2427
    , 2444 (2014)).
    59
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    question at hand, we would still strike down DAPA as an unreasonable inter-
    pretation that is “manifestly contrary” to the INA.                      See Mayo 
    Found., 562 U.S. at 53
    .
    The dissent, relying on Texas Rural Legal Aid v. Legal Services Corp.,
    
    940 F.2d 685
    , 694 (D.C. Cir. 1991), theorizes that our analysis is nothing but
    an application of the expressio unius est exclusio alterius180 canon of construc-
    tion, which the dissent claims is of limited utility in administrative law. Dis-
    sent at 46. The dissent’s observation is astray, however, because our statutory
    analysis does not hinge on the expressio unius maxim.
    Moreover, the Supreme Court and this court have relied on expressio
    unius in deciding issues of administrative law. While noting “the limited use-
    fulness of the expressio unius doctrine in the administrative context,”181 some
    courts have declined to apply it mostly because they find it unhelpful for the
    specific statute at issue.182          On other occasions, both our circuit and the
    Supreme Court have employed the canon in addressing administrative law. 183
    Nor has the District of Columbia Circuit expressly foreclosed use of the canon
    on questions of statutory interpretation by agencies.184 Our distinguished
    180“A canon of construction holding that to express or include one thing implies the
    exclusion of the other, or of the alternative.” BLACK’S LAW DICTIONARY 701 (10th ed. 2014).
    181   Tex. Office of Pub. Util. Counsel v. FCC, 
    183 F.3d 393
    , 443–44 (5th Cir. 1999).
    182Id. at 444 (concluding, on the basis of other statutory provisions, that “Congress
    intended to allow the FCC broad authority to implement this section”).
    183 See, e.g., Christensen v. Harris Cnty., 
    529 U.S. 576
    , 582–83 (2000) (discussing
    expressio unius, and concluding that it does not inform the result, without suggesting that it
    has no applicability in administrative law); Rodriguez-Avalos v. Holder, 
    788 F.3d 444
    , 451
    (5th Cir. 2015) (per curiam) (relying on the expression of a term in one section of the statute
    to infer that its absence in another section suggests intent to foreclose its implication in the
    latter, even though the statute was subject to interpretation by the Board of Immigration
    Appeals).
    184   See Indep. Ins. Agents of Am., Inc. v. Hawke, 
    211 F.3d 638
    , 644 (D.C. Cir. 2000)
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    dissenting colleague, in fact, relied on expressio unius to uphold a decision of
    the Board of Immigration Appeals, concluding that the Equal Access to Justice
    Act did not provide for fee-shifting in proceedings before the Board. See Hodge
    v. Dep’t of Justice, 
    929 F.2d 153
    , 157 n.11 (5th Cir. 1991) (King, J.).
    For the authority to implement DAPA, the government relies in part on
    8 U.S.C. § 1324a(h)(3),185 a provision that does not mention lawful presence or
    deferred action, and that is listed as a “[m]iscellaneous” definitional provision
    expressly limited to § 1324a, a section concerning the “Unlawful employment
    of aliens”—an exceedingly unlikely place to find authorization for DAPA.186
    Likewise, the broad grants of authority in 6 U.S.C. § 202(5),187 8 U.S.C.
    § 1103(a)(3),188 and 8 U.S.C. § 1103(g)(2)189 cannot reasonably be construed as
    (“The Comptroller argues that the expressio unius maxim cannot preclude an otherwise rea-
    sonable agency interpretation. This is not entirely correct. True, we have rejected the canon
    in some administrative law cases, but only where the logic of the maxim . . . simply did not
    hold up in the statutory context. . . . In this case, the two canons upon which we rely [expressio
    unius and avoidance of surplusage] inarguably compel our holding that § 24 (Seventh)
    unambiguously does not authorize national banks to engage in the general sale of insurance
    as ‘incidental’ to ‘the business of banking.’”); see also Ronald M. Levin, The Anatomy of
    Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV.1253, 1280 (1997) (“[P]ost-Chevron
    cases have often set aside agency interpretations by drawing upon the full range of
    conventional statutory construction techniques at step one. Arguments from statutory struc-
    ture and purpose . . . are regularly examined at that step. So are canons of construction.”)
    (footnotes omitted).
    185“As used in this section, the term ‘unauthorized alien’ means, with respect to the
    employment of an alien at a particular time, that the alien is not at that time either (A) an
    alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this
    chapter or by the Attorney General.”
    186See Whitman v. Am. Trucking Ass’ns, 
    531 U.S. 457
    , 468 (2001) (“Congress, we have
    held, does not alter the fundamental details of a regulatory scheme in vague terms or
    ancillary provisions—it does not, one might say, hide elephants in mouseholes.”).
    “The Secretary . . . shall be responsible for . . . [e]stablishing national immigration
    187
    enforcement policies and priorities.”
    188“[The Secretary] . . . shall establish such regulations; prescribe such forms of bond,
    reports, entries, and other papers; issue such instructions; and perform such other acts as he
    deems necessary for carrying out his authority under the provisions of this chapter.”
    189   “The Attorney General shall establish such regulations, prescribe such forms of
    61
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    assigning “decisions of vast ‘economic and political significance,’”190 such as
    DAPA, to an agency.191
    The interpretation of those provisions that the Secretary advances would
    allow him to grant lawful presence and work authorization to any illegal alien
    in the United States—an untenable position in light of the INA’s intricate
    system of immigration classifications and employment eligibility. Even with
    bond, reports, entries, and other papers, issue such instructions, review such administrative
    determinations in immigration proceedings, delegate such authority, and perform such other
    acts as the Attorney General determines to be necessary for carrying out this section.”
    190Util. 
    Air, 134 S. Ct. at 2444
    (quoting Brown & 
    Williamson, 529 U.S. at 159
    ); accord
    
    id. (“When an
    agency claims to discover in a long-extant statute an unheralded power to
    regulate ‘a significant portion of the American economy,’ we typically greet its announcement
    with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to
    an agency decisions of vast ‘economic and political significance.’” (citation omitted) (quoting
    Brown & 
    Williamson, 529 U.S. at 159
    )).
    191The dissent urges the courts to give DHS leeway to craft rules regarding deferred
    action because of the scope of the problem of illegal immigration and the insufficiency of con-
    gressional funding. Dissent at 50. That is unpersuasive. “Regardless of how serious the
    problem an administrative agency seeks to address, . . . it may not exercise its authority ‘in
    a manner that is inconsistent with the administrative structure that Congress enacted into
    law.’” Brown & 
    Williamson, 529 U.S. at 125
    (quoting ETSI Pipeline Project v. Missouri, 
    484 U.S. 495
    , 517 (1988)).
    Because we conclude, at Chevron Step One, that Congress has directly addressed
    lawful presence and work authorizations through the INA’s unambiguously specific and intri-
    cate provisions, we find no reason to allow DHS such leeway. There is no room among those
    specific and intricate provisions for the Secretary to “exercise discretion in selecting a differ-
    ent threshold” for class-wide grants of lawful presence and work authorization under DAPA.
    Util. 
    Air, 134 S. Ct. at 2446
    n.8.
    We merely apply the ordinary tools of statutory construction to conclude that Con-
    gress directly addressed, yet did not authorize, DAPA. See 
    King, 135 S. Ct. at 2483
    (noting
    that to determine whether Congress has expressed its intent, we “must read the words in
    their context and with a view to their place in the overall statutory scheme”; City of Arlington
    v. F.C.C., 
    133 S. Ct. 1863
    , 1868 (2013) (“First, applying the ordinary tools of statutory con-
    struction, the court must determine whether Congress has directly spoken to the precise
    question at issue.”); Util. Air, 134 S. Ct at 2441 (recognizing the “fundamental canon of stat-
    utory construction that the words of a statute must be read in their context and with a view
    to their place in the overall statutory scheme”). Now, even assuming the government had
    survived Chevron Step One, we would strike down DAPA as manifestly contrary to the INA
    under Step Two. See 
    Chevron, 467 U.S. at 844
    ; Mayo 
    Found., 562 U.S. at 53
    .
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    “special deference” to the Secretary,192 the INA flatly does not permit the
    reclassification of millions of illegal aliens as lawfully present and thereby
    make them newly eligible for a host of federal and state benefits, including
    work authorization.
    Presumably because DAPA is not authorized by statute, the United
    States posits that its authority is grounded in historical practice, but that “does
    not, by itself, create power,”193 and in any event, previous deferred-action pro-
    grams are not analogous to DAPA. “[M]ost . . . discretionary deferrals have
    been done on a country-specific basis, usually in response to war, civil unrest,
    or natural disasters,”194 but DAPA is not such a program. Likewise, many of
    the previous programs were bridges from one legal status to another, 195
    192Texas v. United 
    States, 106 F.3d at 665
    (“Courts must give special deference to
    congressional and executive branch policy choices pertaining to immigration.”).
    193 Medellin v. Texas, 
    552 U.S. 491
    , 532 (2008) (quoting Dames & Moore v. Regan,
    
    453 U.S. 654
    , 686 (1981)). But see NLRB v. Noel Canning, 
    134 S. Ct. 2550
    , 2560 (2014) (“[T]he
    longstanding ‘practice of the government’ can inform our determination of ‘what the law is.’”
    (citation omitted) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819); Mar-
    bury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803))).
    ANDORRA BRUNO ET AL., CONG. RESEARCH SERV., ANALYSIS OF JUNE 15, 2012 DHS
    194
    MEMORANDUM, EXERCISING PROSECUTORIAL DISCRETION WITH RESPECT TO INDIVIDUALS
    WHO CAME TO THE UNITED STATES AS CHILDREN 9 (July 13, 2012); see CHARLOTTE J. MOORE,
    CONG. RESEARCH SERV., ED206779, REVIEW OF U.S. REFUGEE RESETTLEMENT PROGRAMS
    AND POLICIES 9, 12–14 (1980).
    195  See Voluntary Departure for Out-of-Status Nonimmigrant H-1 Nurses, 43 Fed.
    Reg. 2776, 2776 (Jan. 19, 1978) (deferring action on the removal of nonimmigrant nurses
    whose temporary licenses expired so that they could pass permanent licensure examina-
    tions); Memorandum from Michael Cronin, Acting Exec. Assoc. Comm’r, Office of Programs,
    INS, to Michael Pearson, Exec. Assoc. Comm’r, Office of Field Operations, INS 2 (Aug. 30,
    2001) (directing that possible victims of the Victims of Trafficking and Violence Protection
    Act of 2000 (“VTVPA”), Pub. L. No. 106-386, 114 Stat. 1464, “should not be removed from the
    United States until they have had the opportunity to avail themselves of the . . . VTVPA,”
    including receipt of a T- or U-visa); Memorandum from Paul Virtue, Acting Exec. Assoc.
    Comm’r, INS, to Reg’l Dirs., INS, et al. 3 (May 6, 1997) (utilizing deferred action for VAWA
    self-petitioners “pending the availability of a visa number”); Press Release, USCIS, USCIS
    Announces Interim Relief for Foreign Students Adversely Impacted by Hurricane Katrina 1
    (Nov. 25, 2005) (deferring action on students “based upon the fact that the failure to maintain
    status is directly due to Hurricane Katrina”); see also United States ex rel. Parco v. Morris,
    63
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    whereas DAPA awards lawful presence to persons who have never had a legal
    status196 and may never receive one.197
    Although the “Family Fairness” program did grant voluntary departure
    to family members of legalized aliens while they “wait[ed] for a visa preference
    number to become available for family members,” that program was interstitial
    to a statutory legalization scheme.198 DAPA is far from interstitial: Congress
    
    426 F. Supp. 976
    , 980 (E.D. Pa. 1977) (discussing an INS policy that allowed aliens to “await
    the availability of a [Third Preference] visa while remaining in this country” under “extended
    voluntary departure”).
    196   DAPA Memo at 4 (limiting DAPA to persons who “have no lawful status”).
    197 
    Id. at 5
    (specifying that DAPA “confers no . . . immigration status or pathway to
    citizenship”). Throughout the dissent is the notion that DHS must pursue DAPA because
    Congress’s funding decisions have left the agency unable to deport as many illegal aliens as
    it would if funding were available. But the adequacy or insufficiency of legislative appropri-
    ations is not relevant to whether DHS has statutory authority to implement DAPA. Neither
    our nor the dissent’s reasoning hinges on the budgetary feasibility of a more thorough
    enforcement of the immigration laws; instead, our conclusion turns on whether the INA gives
    DHS the power to create and implement a sweeping class-wide rule changing the immigra-
    tion status of the affected aliens without full notice-and-comment rulemaking, especially
    where―as here―the directive is flatly contrary to the statutory text.
    The dissent’s repeated references to DAPA as the appropriate continuation of a
    longstanding practice, see, e.g., Dissent at 2, badly mischaracterizes the nature of DAPA.
    Previous iterations of deferred action were limited in time and extent, affecting only a few
    thousand aliens for months or, at most, a few years. MEMORANDUM ON THE DEP’T OF HOME-
    LAND SEC.’S AUTH. TO PRIORITIZE REMOVAL OF CERTAIN ALIENS UNLAWFULLY PRESENT IN
    THE UNITED STATES AND TO DEFER REMOVAL OF OTHERS, Dep’t of Justice, Office of Legal
    Counsel, at *15–*17 (Nov. 19, 2014).
    Nothing like DAPA, which alters the status of more than four million aliens, has ever
    been contemplated absent direct statutory authorization. In its OLC memorandum, the
    Department of Justice noted that “extending deferred action to individuals who satisfied
    these and other specified criteria on a class-wide basis would raise distinct questions not
    implicated by ad hoc grants of deferred action.” 
    Id. at *18
    n.8. Deferred action may be a
    decades-old tool, but it has never been used to affect so many aliens and to do so for so expan-
    sive a period of time.
    198 See Memorandum from Gene McNary, Comm’r, INS, to Reg’l Comm’rs, INS 1
    (Feb. 2, 1990) (authorizing extended voluntary departure and work authorization for the
    spouses and children of aliens who had been granted legal status under the Immigration
    Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359); see also Memorandum
    from Donald Neufeld, Acting Assoc. Dir., USCIS, to Field Leadership, USCIS 1 (Sept. 4, 2009)
    64
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    has repeatedly declined to enact the Development, Relief, and Education for
    Alien Minors Act (“DREAM Act”),199 features of which closely resemble DACA
    and DAPA.
    Historical practice that is so far afield from the challenged program
    sheds no light on the Secretary’s authority to implement DAPA. Indeed, as the
    district court recognized, the President explicitly stated that “it was the failure
    of Congress to enact such a program that prompted him . . . to ‘change the
    law.’”200 At oral argument, and despite being given several opportunities, the
    attorney for the United States was unable to reconcile that remark with the
    position that the government now takes. And the dissent attempts to avoid
    the impact of the President’s statement by accusing the district court and this
    panel majority of “relying . . . on selected excerpts of the President’s public
    statements.” Dissent at 24, 33 n.41.
    The dissent repeatedly claims that congressional silence has conferred
    on DHS the power to act. E.g., Dissent at 46–47. To the contrary, any such
    inaction cannot create such power:
    “[D]eference is warranted only when Congress has left a gap for the
    agency to fill pursuant to an express or implied ‘delegation of authority
    to the agency.’” 
    Chevron[,] 467 U.S. at 843
    –44[]. To suggest, as the
    [agency] effectively does, that Chevron step two is implicated at any
    (authorizing deferred action for “the surviving spouse of a deceased U.S. citizen if the sur-
    viving spouse and the U.S. citizen were married less than 2 years at the time of the citizen’s
    death” because “no avenue of immigration relief exist[ed]” and “[t]his issue has caused a split
    among the circuit courts of appeal and is also the subject of proposed legislation in . . .
    Congress”).
    199 “[A] bill that would have become the ‘DREAM’ Act never became law[; it] passed
    the House of Representatives during the 111th Congress and then stalled in the Senate.”
    Common Cause v. Biden, 
    748 F.3d 1280
    , 1281 (D.C. Cir.) (citing H.R. 5281, 111th Cong.
    (2010)), cert. denied, 
    135 S. Ct. 451
    (2014)).
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 657
    & n.71 (quoting Press Release, Remarks by the
    200
    President on Immigration―Chicago, Ill., The White House Office of the Press Sec’y (Nov. 25,
    2014)).
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    time a statute does not expressly negate the existence of a claimed
    administrative power . . . is both flatly unfaithful to the principles of
    administrative law . . . and refuted by precedent. . . . Were courts to
    presume a delegation of power absent an express withholding of such
    power, agencies would enjoy virtually limitless hegemony, a result
    plainly out of keeping with Chevron and quite likely with the Constitu-
    tion as well.
    Ethyl Corp. v. EPA, 
    51 F.3d 1053
    , 1060 (D.C. Cir. 1995).
    Through the INA’s specific and intricate provisions, “Congress has ‘dir-
    ectly addressed the precise question at issue.’” Mayo 
    Found., 562 U.S. at 52
    .
    As we have indicated, the INA prescribes how parents may derive an immigra-
    tion classification on the basis of their child’s status and which classes of aliens
    can achieve deferred action and eligibility for work authorization. DAPA is
    foreclosed by Congress’s careful plan; the program is “manifestly contrary to
    the statute”201 and therefore was properly enjoined.202
    VIII.
    The states have satisfied the other requirements for a preliminary
    injunction. They have demonstrated “a substantial threat of irreparable injury
    if the injunction is not issued.” 
    Sepulvado, 729 F.3d at 417
    (quoting 
    Byrum, 566 F.3d at 445
    ). DAPA beneficiaries would be eligible for driver’s licenses and
    other benefits, and a substantial number of the more than four million poten-
    tial beneficiaries—many of whom live in the plaintiff states—would take
    advantage of that opportunity. The district court found that retracting those
    benefits would be “substantially difficult—if not impossible,” Dist. Ct. Op.,
    201Mayo 
    Found., 562 U.S. at 53
    (quoting Household Credit Servs., Inc. v. Pfennig, 
    541 U.S. 232
    , 242 (2004)).
    202We do not address whether single, ad hoc grants of deferred action made on a gen-
    uinely case-by-case basis are consistent with the INA; we conclude only that the INA does
    not grant the Secretary discretion to grant deferred action and lawful presence on a class-
    wide basis to 4.3 million otherwise removable aliens.
    66
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    15-40238 86 F. Supp. 3d at 673
    , and the government has given us no reason to doubt
    that finding.
    The states have shown “that the threatened injury if the injunction is
    denied outweighs any harm that will result if the injunction is granted.” Sepul-
    
    vado, 729 F.3d at 417
    (quoting 
    Byrum, 566 F.3d at 445
    ). The states have
    alleged a concrete threatened injury in the form of millions of dollars of losses.
    The harms the United States has identified are less substantial. It
    claims that the injunction “obstructs a core Executive prerogative” and offends
    separation-of-powers and federalism principles.               Those alleged harms are
    vague, and the principles the government cites are more likely to be affected
    by the resolution of the case on the merits than by the injunction.
    Separately, the United States postulates that the injunction prevents
    DHS from effectively prioritizing illegal aliens for removal. But the injunction
    “does not enjoin or impair the Secretary’s ability to marshal his assets or deploy
    the resources of the DHS [or] to set priorities,” including selecting whom to
    remove first, see Dist. Ct. 
    Op., 86 F. Supp. 3d at 678
    , and any inefficiency is
    outweighed by the major financial losses the states face.
    The government also complains that the injunction imposes administra-
    tive burdens because DHS has already leased office space and begun hiring
    employees to implement DAPA. Such inconveniences are common incidental
    effects of injunctions, and the government could have avoided them by delaying
    preparatory work until the litigation was resolved.203 Finally, the government
    reasonably speculates that the injunction burdens DAPA beneficiaries and
    203Cf. Kos Pharm., Inc. v. Andrx Corp., 
    369 F.3d 700
    , 728 (3d Cir. 2004) (“[W]hen
    the potential harm to each party is weighed, a party ‘can hardly claim to be harmed [where]
    it brought any and all difficulties occasioned by the issuance of an injunction upon itself.’”
    (second alteration in original) (quoting Opticians Ass’n of Am. v. Indep. Opticians of Am.,
    
    920 F.2d 187
    , 197 (3d Cir. 1990))).
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    their families and discourages them from cooperating with law-enforcement
    officers and paying taxes. But those are burdens that Congress knowingly
    created, and it is not our place to second-guess those decisions.
    The states have also sufficiently established that “an injunction will not
    disserve the public interest.” 
    Sepulvado, 729 F.3d at 417
    (quoting 
    Byrum, 566 F.3d at 445
    ). This factor overlaps considerably with the previous one, and
    most of the same analysis applies.204 The main difference is that, instead of
    relying on their financial interests, the states refer to the public interest in
    protecting separation of powers by curtailing unlawful executive action.
    Although the United States cites the public interest in maintaining sep-
    aration of powers and federalism by avoiding judicial and state interference
    with a legitimate executive function, there is an obvious difference: The inter-
    est the government has identified can be effectively vindicated after a trial on
    the merits. The interest the states have identified cannot be, given the diffi-
    culty of restoring the status quo ante if DAPA were to be implemented.205 The
    public interest easily favors an injunction.
    IX.
    The government claims that the nationwide scope of the injunction is an
    abuse of discretion and requests that it be confined to Texas or the plaintiff
    204Cf. Nken v. Holder, 
    556 U.S. 418
    , 435 (2009) (“Once an applicant satisfies the first
    two factors [for a stay of an alien’s removal pending judicial review], the traditional stay
    inquiry calls for assessing the harm to the opposing party and weighing the public interest.
    These factors merge when the Government is the opposing party.”).
    205 See Wenner v. Tex. Lottery Comm’n, 
    123 F.3d 321
    , 326 (5th Cir. 1997) (“It is well
    settled that the issuance of a prohibitory injunction freezes the status quo, and is intended
    ‘to preserve the relative positions of the parties until a trial on the merits can be held.’ Pre-
    liminary injunctions commonly favor the status quo and seek to maintain things in their
    initial condition so far as possible until after a full hearing permits final relief to be fash-
    ioned.” (citation omitted) (quoting Univ. of Tex. v. Camenisch, 
    451 U.S. 390
    , 395 (1981))).
    68
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    states. But the Constitution requires “an uniform Rule of Naturalization”;206
    Congress has instructed that “the immigration laws of the United States
    should be enforced vigorously and uniformly”;207 and the Supreme Court has
    described immigration policy as “a comprehensive and unified system.”208 Par-
    tial implementation of DAPA would “detract[] from the ‘integrated scheme of
    regulation’ created by Congress,”209 and there is a substantial likelihood that
    a geographically-limited injunction would be ineffective because DAPA bene-
    ficiaries would be free to move among states.
    Furthermore, the Constitution vests the District Court with “the judicial
    Power of the United States.”210              That power is not limited to the district
    wherein the court sits but extends across the country. It is not beyond the
    power of a court, in appropriate circumstances, to issue a nationwide
    injunction.211
    206   U.S. CONST. art. I, § 8, cl. 4 (emphasis added).
    Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat.
    207
    3359, 3384 (emphasis added).
    208   Arizona v. United 
    States, 132 S. Ct. at 2502
    .
    
    Id. (quoting Wis.
    Dep’t of Indus., Labor & Human Relations v. Gould Inc., 
    475 U.S. 209
    282, 288–89 (1986)).
    210   U.S. CONST. art. III, § 1
    211  See, e.g., Earth Island Inst. v. Ruthenbeck, 
    490 F.3d 687
    , 699 (9th Cir. 2006)
    (upholding a nationwide injunction after concluding it was “compelled by the text of [§ 706 of
    the] Administrative Procedure Act”), aff’d in part & rev’d in part on other grounds by Sum-
    mers v. Earth Island Inst., 
    555 U.S. 488
    (2009) (concluding that the plaintiff organizations
    lacked standing to challenge the forest service action in question); Chevron Chem. Co. v. Vol-
    untary Purchasing Grps., 
    659 F.2d 695
    , 705–06 (Former 5th Cir. Oct. 1981) (instructing
    district court to issue broad, nationwide injunction); Brennan v. J.M. Fields, Inc., 
    488 F.2d 443
    , 449–50 (5th Cir. 1973) (upholding nationwide injunction against a national chain);
    Hodgson v. First Fed. Sav. & Loan Ass’n, 
    455 F.2d 818
    , 826 (5th Cir. 1972) (“[C]ourts should
    not be loath[ ] to issue injunctions of general applicability. . . . ‘The injunctive processes are
    a means of effecting general compliance with national policy as expressed by Congress, a
    public policy judges too must carry out—actuated by the spirit of the law and not begrudg-
    ingly as if it were a newly imposed fiat of a presidium.’” (quoting Mitchell v. Pidcock, 
    299 F.2d 281
    , 287 (5th Cir. 1962)).
    69
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    “We expect Congress to speak clearly if it wishes to assign to an agency
    decisions of vast ‘economic and political significance.’” Util. 
    Air, 134 S. Ct. at 2444
    (citation omitted).     Agency announcements to the contrary are
    “greet[ed] . . . with a measure of skepticism.” 
    Id. The district
    court did not err and most assuredly did not abuse its dis-
    cretion. The order granting the preliminary injunction is AFFIRMED.
    70
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    KING, Circuit Judge, dissenting:
    Although there are approximately 11.3 million removable aliens in this
    country today, for the last several years Congress has provided the Department
    of Homeland Security (DHS) with only enough resources to remove
    approximately 400,000 of those aliens per year.1                  Recognizing DHS’s
    congressionally granted prosecutorial discretion to set removal enforcement
    priorities, Congress has exhorted DHS to use those resources to “mak[e] our
    country safer.”      In response, DHS has focused on removing “those who
    represent threats to national security, public safety, and border security.” The
    DAPA Memorandum at issue here focuses on a subset of removable aliens who
    are unlikely to be removed unless and until more resources are made available
    by Congress: those who are the parents of United States citizens or legal
    permanent residents, who have resided in the United States for at least the
    last five years, who lack a criminal record, and who are not otherwise removal
    priorities as determined by DHS. The DAPA Memorandum has three primary
    objectives for these aliens: (1) to permit them to be lawfully employed and
    thereby enhance their ability to be self-sufficient, a goal of United States
    immigration law since this country’s earliest immigration statutes; (2) to
    encourage them to come out of the shadows and to identify themselves and
    where they live, DHS’s prime law enforcement objective; and (3) to maintain
    flexibility so that if Congress is able to make more resources for removal
    available, DHS will be able to respond.
    1  During the period from 2009 through 2014, approximately 2.4 million aliens were
    removed from the United States. DHS claims that this is a record number, and Plaintiffs do
    not dispute that point.
    71
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    Plaintiffs do not challenge DHS’s ability to allow the aliens subject to the
    DAPA Memorandum—up to 4.3 million, some estimate—to remain in this
    country indefinitely. Indeed, Plaintiffs admit that such removal decisions are
    well within DHS’s prosecutorial discretion.2 Rather, Plaintiffs complain of the
    consequences of DHS’s decision to use its decades-long practice of granting
    “deferred action” to these individuals, specifically that these “illegal aliens”
    may temporarily work lawfully for a living and may also eventually become
    eligible for some public benefits. Plaintiffs contend that these consequences
    and benefits must be struck down even while the decision to allow the “illegal
    aliens” to remain stands.           But Plaintiffs’ challenge cannot be so easily
    bifurcated. For the benefits of which Plaintiffs complain are not conferred by
    the DAPA Memorandum—the only policy being challenged in this case—but
    are inexorably tied to DHS’s deferred action decisions by a host of
    unchallenged, preexisting statutes and notice-and-comment regulations
    enacted by Congresses and administrations long past.                       Deferred action
    decisions, such as those contemplated by the DAPA Memorandum, are
    quintessential exercises of prosecutorial discretion. As the Supreme Court put
    it sixteen years ago, “[a]t each stage [of the removal process] the Executive has
    discretion to abandon the endeavor, [including by] engaging in a regular
    practice (which had come to be known as ‘deferred action’) of exercising that
    discretion for humanitarian reasons or simply for its own convenience.” 3
    Because all parties agree that an exercise of prosecutorial discretion itself is
    unreviewable, this case should be dismissed on justiciability grounds.
    2 In their briefing on appeal, Plaintiffs refute the “mistaken premise that this lawsuit
    challenges [DHS]’s decision not to remove certain unauthorized aliens,” making clear that
    “[t]his lawsuit has never challenged any decision by the Executive to initiate or
    forego removal proceedings.” Appellees’ Suppl. Br. 18–19.
    3   Reno v. Am.-Arab Anti-Discrimination Comm., 
    525 U.S. 471
    , 483–84 (1999).
    72
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    Even if this case were justiciable, the preliminary injunction, issued by
    the district court, is a mistake. If the Memorandum is implemented in the
    truly discretionary, case-by-case manner it contemplates, it is not subject to
    the APA’s notice-and-comment requirements, and the injunction cannot stand.
    Although the very face of the Memorandum makes clear that it must be applied
    with such discretion, the district court concluded on its own—prior to DAPA’s
    implementation, based on improper burden-shifting, and without seeing the
    need even to hold an evidentiary hearing—that the Memorandum is a sham, a
    mere “pretext” for the Executive’s plan “not [to] enforce the immigration laws
    as to over four million illegal aliens.” Texas v. United States, 
    86 F. Supp. 3d 591
    , 638 (S.D. Tex. 2015) [hereinafter Dist. Ct. Op.]. That conclusion is clearly
    erroneous. The majority affirms and goes one step further today. It holds, in
    the alternative, that the Memorandum is contrary to the INA and
    substantively violates the APA. These conclusions are wrong. The district
    court expressly declined to reach this issue without further development, 
    id. at 6
    77, and the limited briefing we have before us is unhelpful and
    unpersuasive. For these reasons, as set out below, I dissent.
    I.    The DAPA Memorandum
    For all of the pounds of paper written about it, the DAPA Memorandum
    spans only five pages, and I attach it to this dissent for all to read. 4 The D.C.
    Circuit (which hears more of these administrative law cases than any other)
    has wisely observed that “[s]ometimes a simple reading of the document and
    4 The DAPA Memorandum is attached as Appendix A. As Appendix B, I also attach
    the Secretary’s November 20, 2014, memorandum entitled “Policies for the Apprehension,
    Detention and Removal of Undocumented Immigrants” (Enforcement Priorities
    Memorandum), which itself is unchallenged by Plaintiffs, but which the DAPA Memorandum
    incorporates by reference.
    73
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    study of its role in the regulatory scheme will yield the answer.” Pub. Citizen,
    Inc. v. U.S. Nuclear Regulatory Comm’n, 
    940 F.2d 679
    , 682 (D.C. Cir. 1991).
    The DAPA Memorandum is one of a series of memoranda issued by
    Secretary of Homeland Security Jeh Johnson on November 20, 2014. Broadly
    speaking, the Memorandum does two things: (1) it expands certain parameters
    of the prior DACA Memorandum, which provided guidelines for the use of
    deferred action with respect to certain individuals who came to the United
    States as children; and (2) it includes “guidance for case-by-case use of deferred
    action for those adults who have been in this country since January 1, 2010,
    are the parents of U.S. citizens or lawful permanent residents, and who are
    otherwise not enforcement priorities.” Appx. A, at 3.
    It is important to recognize at the outset the backdrop upon which the
    Memorandum was written. As noted above, given the resource constraints
    faced by DHS, the agency is faced with important prioritization decisions as to
    which aliens should be the subject of removal proceedings. Congress has made
    clear that those decisions are to be made by DHS, not by Congress itself—and
    certainly not by the courts. Indeed, Congress has delegated to the Secretary of
    Homeland Security the authority to “[e]stablish[] national immigration
    enforcement policies and priorities,” 6 U.S.C. § 202(5),5 and to “establish such
    regulations; . . . issue such instructions; and perform such other acts as he
    deems necessary for carrying out” his responsibilities, 8 U.S.C. § 1103(a)(3).6
    Congress has given the Secretary some direction, in appropriations bills, as to
    how removal resources should be spent—by specifically devoting funding
    toward “identify[ing] aliens convicted of a crime who may be deportable,
    and . . . remov[ing] them from the United States once they are judged
    5   This statute was passed in 2002.
    6   A version of this statute was first passed in 1990.
    74
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    deportable,” and by making clear that the Secretary “shall prioritize the
    identification and removal of aliens convicted of a crime by the severity of that
    crime.” Department of Homeland Security Appropriations Act, Pub. L. No.
    114-4, 129 Stat 39, 43 (2015).
    In an apparent effort to maximize the resources that can be devoted to
    such ends and consistent with his congressionally granted authority to set
    enforcement priorities, the Secretary contends that he has chosen—through
    the DACA and DAPA Memoranda—to divert some of DHS’s resources away
    from the lowest priority aliens to better enforce the immigration laws against
    the highest priority aliens. See Arpaio v. Obama, 
    797 F.3d 11
    , 17–18 (D.C. Cir.
    2015) (“DACA and DAPA . . . apply to the portion of the population that [DHS]
    considers not threatening to public safety and that has not had any
    involvement, or only minimal and minor involvement, with the criminal justice
    system.”). By granting deferred action to children who were brought to this
    country unlawfully, and to the parents of U.S. citizens and lawful permanent
    residents (who otherwise have clean records), DHS has sought to “encourage
    [those individuals] to come out of the shadows, submit to background checks,
    pay fees, apply for work authorization . . . and be counted.” Appx. A, at 3.
    Qualifying individuals can therefore work “on the books”—meaning, of course,
    that they will pay taxes on the income they earn. Furthermore, the Secretary
    points to the humanitarian aim of the DAPA Memorandum which, in
    conjunction with the DACA Memorandum, keeps families together—at least
    temporarily. Cf. 
    Reno, 525 U.S. at 484
    (describing “deferred action” as an
    “exercis[e] [of] discretion for humanitarian reasons or simply for [the
    Executive’s] own convenience”). And by encouraging removable aliens to self-
    identify and register, both DACA and DAPA allow DHS to collect information
    (names, addresses, etc.) that will make it easier to locate these aliens in the
    future—if and when DHS ultimately decides to remove them. DHS is, of
    75
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    course, a law enforcement agency, and this is what we would call “good
    policing.” Although these programs will likely apply to a large number of
    individuals, that result is the inevitable upshot of decades of congressional
    appropriations decisions,7 which require DHS (whether by policy or by
    practice) to de-prioritize millions of removable aliens each year due to these
    resource constraints.
    The DAPA Memorandum operates in two ways. First, with respect to
    the expansion of DACA, the DAPA Memorandum: removes the age cap (the
    DACA Memorandum excluded applicants over 31 years of age); extends the
    period of deferred action from two to three years; and adjusts the date-of-entry
    requirement from June 15, 2007, to January 1, 2010.                             Second, the
    Memorandum establishes new deferred action guidance, “direct[ing] USCIS to
    establish a process, similar to DACA, for exercising prosecutorial discretion
    through the use of deferred action, on a case-by-case basis, to those individuals”
    who meet six threshold criteria:
     have, on the date of this memorandum, a son or daughter who
    is a U.S. citizen or lawful permanent resident;
     have continuously resided in the United States since before
    January 1, 2010;
     are physically present in the United States on the date of this
    memorandum, and at the time of making a request for
    consideration of deferred action with USCIS;
     have no lawful status on the date of this memorandum;
     are not an enforcement priority as reflected in the [Enforcement
    Priorities Memorandum8]; and
    7The limited resources that Congress has made available to DHS for removals are
    most probably a product of the nation’s limited resources, not of penuriousness on the part of
    Congress.
    8  The Enforcement Priorities Memorandum classifies aliens into three priority
    categories: (1) “Priority 1 (threats to national security, border security, and public safety)”;
    (2) “Priority 2 (misdemeanants and new immigration violators)”; and (3) “Priority 3 (other
    immigration violations).” Appx. B, at 3–4. It further states that “resources should be
    76
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     present no other factors that, in the exercise of discretion,
    makes the grant of deferred action inappropriate.
    Appx. A, at 4.
    The Memorandum describes deferred action as a “form of prosecutorial
    discretion by which the Secretary deprioritizes an individual’s case for
    humanitarian reasons, administrative convenience, or in the interest of the
    Department’s overall enforcement mission.”9 Appx. A, at 2. The Memorandum
    makes clear that deferred action: must be “granted on a case-by-case basis”;
    “may be terminated at any time at the agency’s discretion”;10 and “does not
    confer any form of legal status in this country, much less citizenship.”
    Appx. A, at 2.      The Memorandum also states that although “immigration
    officers will be provided with specific eligibility criteria for deferred
    action, . . . the ultimate judgment as to whether an immigrant is granted
    deferred action will be determined on a case-by-case basis.” Appx. A, at 5. In
    addition, the Memorandum makes clear that applicants must submit to a
    background check and pay a $465 fee.11 Appx. A, at 4–5. It notes that deferred
    action recipients are eligible to apply for employment authorization. 12
    Appx. A, at 4. Finally, the Memorandum states that it “confers no substantive
    right, immigration status or pathway to citizenship.” Appx. A, at 5.
    dedicated, to the greatest degree possible, to the removal of aliens described in the priorities
    set forth above, commensurate with the level of prioritization identified.” Appx. B, at 5.
    9The Memorandum also summarizes the substantial past use of deferred action.
    Appx. A, at 2.
    10 Therefore, if Congress were to substantially increase the amount of funding
    available to DHS for removals, deferred action would pose no impediment to the removal
    even of these low-priority aliens.
    11DHS contends that the fees collected will be sufficient to offset any administrative
    costs required to implement the DAPA Memorandum.
    12As discussed below, this is merely a statement of preexisting law. See 8 C.F.R.
    § 274a.12(c)(14).
    77
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    Holding that Plaintiffs’ challenge to this Memorandum is likely to
    succeed on the merits, the majority reaches four conclusions, the first three of
    which were reached by the district court, to sustain the preliminary injunction:
    (1) Plaintiffs have standing; (2) this case is justiciable and reviewable under
    the APA; (3) the DAPA Memorandum constitutes a substantive rule that must
    go through the notice-and-comment process; and (4) the DAPA Memorandum
    is not authorized by statute and is a substantive violation of the APA. As to
    the first conclusion, the majority finds that Texas is entitled to “special
    solicitude” in the standing analysis as DAPA implicates state “sovereignty
    concerns.” Majority Op. at 10, 14. Within this framework of standing, Texas
    has demonstrated an injury-in-fact because “it would incur significant costs in
    issuing driver’s licenses to DAPA beneficiaries.”      
    Id. at 16.
    The majority
    contends that even though “Texas could avoid financial loss by requiring
    applicants to pay the full costs of licenses, it could not avoid injury altogether”
    because “avoid[ing] injury by incurring other costs does not negate standing.”
    
    Id. at 19.
    Second, the majority determines that this action is reviewable under
    the APA even though DAPA helps set “priority levels” for immigration
    enforcement, suggesting that it “is a presumptively unreviewable exercise of
    ‘prosecutorial discretion.’” 
    Id. at 35.
    Despite this, the majority claims that
    DAPA is reviewable because it “affirmatively confer[s] ‘lawful presence’ and
    associated benefits.” 
    Id. While reaching
    this conclusion the majority also casts
    doubt on the validity of one of these benefits—a decades-old regulation on
    employment authorization, previously unchallenged in this suit. See 
    id. at 39–
    40.    Third, recognizing that the “DAPA Memo facially purports to confer
    discretion,” 
    id. at 4
    4, the majority nonetheless deems the DAPA Memorandum
    a substantive rule subject to the requirements of notice-and-comment
    rulemaking, 
    id. at 4
    4–54.      According to the majority, the district court’s
    conclusion—that “[n]othing about DAPA ‘genuinely leaves the agency and its
    78
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    [employees] free to exercise discretion,’” Dist. Ct. 
    Op., 86 F. Supp. 3d at 670
    —
    is not clearly erroneous, as there was at least “conflicting evidence on the
    degree to which DACA allowed for discretion.” Majority Op. at 49 (emphasis
    added). Finally, the majority reaches beyond the district court’s judgment to
    conclude that DAPA constitutes a substantive violation of the APA because it
    “is not authorized by statute.” 
    Id. at 63.
    I address each of these conclusions in
    turn.
    II.    Standing
    While I would conclude that this case is non-justiciable, I write first to
    note my concerns with the majority’s primary theory of standing, premised on
    an expansive notion of state standing and Texas’s increased costs due to the
    issuance of driver’s licenses to DAPA recipients.
    Building off a single, isolated phrase in Massachusetts v. EPA,
    
    549 U.S. 497
    , 520 (2007), the majority finds that Texas has “special solicitude”
    in the standing inquiry because “DAPA affects the states’ ‘quasi-sovereign’
    interests.” Majority Op. at 13. It is altogether unclear whether the majority
    means that states are afforded a relaxed standing inquiry by virtue of their
    statehood or whether their statehood, in of itself, helps confer standing. In any
    event, both propositions are deeply troublesome for three reasons.
    First, this reasoning misconstrues the holding of Massachusetts. In that
    case, the Supreme Court held that Massachusetts had standing to challenge
    the EPA’s decision not to regulate greenhouse gas emissions. 
    Massachusetts, 549 U.S. at 526
    .      But it did so based on Massachusetts’ quasi-sovereign
    interests and a provision of the Clean Air Act that specifically “recognized a
    concomitant procedural right to challenge the rejection of its rulemaking
    petition as arbitrary and capricious.” 
    Id. at 5
    20 (citing 42 U.S.C. § 7607(b)(1)).
    The Court there recognized that this statutory “authorization [was] of critical
    importance to the standing inquiry.” 
    Id. at 516.
    By contrast, neither the INA
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    nor the APA specifically authorizes this suit.13 Massachusetts also provides
    little instruction as to how far this “special solicitude” reaches. The phrase
    appears only once in the Massachusetts majority opinion. And the Court has
    had no occasion to revisit it since.14
    Second, the majority’s ruling raises serious separation of powers
    concerns. Long recognized is “the foundational role that Article III standing
    plays in our separation of powers.” Ariz. Christian Sch. Tuition Org. v. Winn,
    
    131 S. Ct. 1436
    , 1443 (2011); see also Steel Co. v. Citizens for a Better Env’t,
    
    523 U.S. 83
    , 125 n.20 (1998) (“[O]ur standing doctrine is rooted in separation-
    of-powers concerns.”). By preserving the proper bounds of Article III standing,
    the judiciary prevents itself from “aggrandiz[ing] itself . . . at the expense of
    one of the other branches.” John G. Roberts, Jr., Article III Limits on Statutory
    Standing, 42 Duke L.J. 1219, 1230 (1993).
    The majority’s breathtaking expansion of state standing would inject the
    courts into far more federal–state disputes and review of the political branches
    than is now the case. While the majority claims that the factors giving a state
    “special solicitude” to sue the federal government will “seldom exist,” its
    holding suggests otherwise. Majority Op. at 28. If the APA provides the
    requisite procedural right to file suit—as the majority indicates, see 
    id. at 11
    —
    13 The majority suggests that the APA does provide specific authorization for suit here
    because it “authorizes challenges to ‘final agency action for which there is no other adequate
    remedy in a court.’” Majority Op. at 11 (citing 5 U.S.C. § 704). If this were the case, then
    presumably Massachusetts would have also referenced the APA as conferring a procedural
    right since the plaintiffs there challenged “final agency action” within the ambit of the APA.
    Massachusetts did not, however, even refer to the APA. And, as discussed below, it would be
    odd if the APA provided such an expansive procedural right to states.
    14The notion of “special solicitude” was cited in Arizona State Legislature v. Arizona
    Independent Redistricting Commission (AIRC), 
    135 S. Ct. 2652
    , 2664–65 n.10 (2015)—but as
    recognized by a treatise, in a footnote, in an opinion that did not concern federal–state suits.
    That footnote correctly observed that “[t]he cases on the standing of states to sue the federal
    government” are “hard to reconcile.” 
    Id. (quoting R.
    Fallon et al., Hart and Wechsler’s The
    Federal Courts and the Federal System 263–66 (6th ed. 2009)).
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    and a state need only assert a “quasi-sovereign interest” to get “special
    solicitude,” then states can presumably challenge a wide array of federal
    regulatory actions. The majority dismisses such a possibility as a “parade of
    horribles” and “unfounded” based on the lack of such lawsuits at the moment.
    
    Id. at 2
    8. It is certainly possible to describe a parade of horribles that could
    result from the majority’s decision, but those horribles are only “unfounded”
    because the majority’s broad ruling is untested and unparalleled in any other
    court.15 By relaxing standing for state suits against the federal government,
    we risk transforming ourselves into “ombudsmen of the administrative
    bureaucracy, a role for which [we] are ill-suited both institutionally and as a
    matter of democratic theory.” 
    Roberts, supra, at 1232
    .
    Third, and relatedly, the majority’s sweeping “special solicitude”
    analysis “has no principled limit.” Majority Op. at 26. Recognizing that fact,
    it “stress[es] that [its] decision is limited to these facts.” 
    Id. at 16.
    Really? If
    that were true, there would be no need to assuage concerns regarding the
    opinion’s breadth by arguing “that there are other ways to cabin policy
    disagreements masquerading as legal claims.” 
    Id. at 2
    7. It is hard for me to
    15  The majority cites a number of cases to show that courts have held that states have
    standing to sue the federal government. Majority Op. at 12–13. Many of these cases are
    inapposite. Alaska v. U.S. Department of Transportation, 
    868 F.2d 441
    , 443–45 (D.C. Cir.
    1989), found standing because the FAA, much like the CAA in Massachusetts, created a
    procedural right to sue available to states. The court in Virginia ex rel. Cuccinelli v. Sebelius,
    
    656 F.3d 253
    , 272 (4th Cir. 2011), actually denied standing. And Alfred L. Snapp & Son, Inc.
    v. Puerto Rico ex rel. Barez, 
    458 U.S. 592
    (1982), Diamond v. Charles, 
    476 U.S. 54
    (1986), and
    Maine v. Taylor, 
    477 U.S. 131
    (1986), did not involve federal–state suits. It is true that courts
    found state standing against the federal government in Ohio ex rel. Celebrezze v. U.S.
    Department of Transportation, 
    766 F.2d 228
    , 232–33 (6th Cir. 1985), Texas Office of Public
    Utility v. Federal Communications Commission, 
    183 F.3d 393
    , 449 (5th Cir. 1999), Wyoming
    ex rel. Crank v. United States, 
    539 F.3d 1236
    , 1241–44 (10th Cir. 2008), and New Mexico ex
    rel. Richardson v. Bureau of Land Management, 
    565 F.3d 683
    , 696 n.13 (10th Cir. 2009),
    respectively. However, Celebrezze preceded the Supreme Court’s more rigorous standing
    cases (i.e., post-Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    (1992)). And Texas Office of
    Public Utility, Crank, and Richardson offered very cursory examinations of state standing
    bereft of the sweeping language the majority uses today.
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    see the bounds of the majority’s broad ruling. Circuit Judge Alvin B. Rubin of
    this court once wrote that “[a]ny appellate opinion worth publishing should not
    merely give a reasoned disposition of the particular matter; it should, in
    addition, articulate a standard or a rule that can be applied by lawyers and
    judges in future cases.” Alvin B. Rubin, Views From the Lower Court, 23 UCLA
    L. Rev. 448, 451 (1976). Anything else is a “‘railway ticket’ decision—good only
    for this day and station.” 
    Id. Today’s decision
    is either just such a “railway
    ticket” (which, we are told, it actually aspires to be) or a broad, new-fangled
    concept of state standing with little instruction going forward.
    Apart from its “special solicitude” analysis, the majority also holds that
    Texas has standing because it suffered an injury-in-fact traceable to DAPA.
    This injury results from two independent decisions made by Texas: (1) an
    alleged decision to underwrite the costs of issuing driver’s licenses to all
    applicants; and (2) a decision to allow deferred action recipients to apply for
    driver’s licenses. The majority claims, at length, that there is a “pressure to
    change state law,” Majority Op. at 13, because the DAPA Memorandum has
    the downstream effect of expanding the pool of potential Texas driver’s license
    applicants, thus increasing the costs Texas has made the choice to bear. This
    “pressure” is entirely manufactured by Plaintiffs for this case, and the majority
    and the district court have signed on. Nothing in the DAPA Memorandum
    suggests changes in state law. And I am skeptical that an incidental increase
    in state costs is sufficient to confer standing for the purposes of Article III. See
    Pennsylvania v. New Jersey, 
    426 U.S. 660
    , 664 (1976) (“No State can be heard
    to complain about damage inflicted by its own hand.”). But see Wyoming v.
    Oklahoma, 
    502 U.S. 437
    , 448 (1992) (holding a state had standing to sue
    another state when it suffered “a direct injury in the form of a loss of specific
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    tax revenues”).16 Such a theory of standing—based on the indirect economic
    effects of agency action—could theoretically bestow upon states standing to
    challenge any number of federal programs as well (assuming states have the
    motivation to create the factual record to support those economic effects). I
    have serious misgivings about any theory of standing that appears to allow
    limitless state intrusion into exclusively federal matters—effectively enabling
    the states, through the courts, to second-guess federal policy decisions—
    especially when, as here, those decisions involve prosecutorial discretion. See
    
    AIRC, 135 S. Ct. at 2665
    n.12 (“The Court’s standing analysis . . . has been
    ‘especially rigorous when reaching the merits of the dispute would force [the
    Court] to decide whether an action taken by one of the other two branches of
    the Federal Government was unconstitutional.’” (quoting Raines v. Byrd,
    
    521 U.S. 811
    , 819–20 (1997)).
    III.    Justiciability
    I would conclude, as did Judge Higginson in dissenting from the denial
    of a stay in this action, that this case is non-justiciable.              I write only to
    supplement Judge Higginson’s thorough and forceful analysis as to this issue,
    16  Recognizing the tension between these two cases, the majority claims that Texas’s
    injury is like that of Wyoming in Wyoming v. Oklahoma, and not like that of Pennsylvania
    in Pennsylvania v. New Jersey. But a principal difference in these cases was that
    Pennsylvania, like Texas, tied its law to that of another sovereign, whereas Wyoming did not.
    See 
    Pennsylvania, 426 U.S. at 663
    (“Pennsylvania permits a tax credit to any of its residents
    for income taxes paid to other States, including, of course, New Jersey.”). The majority
    asserts that forcing Texas to change its laws would be an injury because states have “a
    sovereign interest in ‘the power to create and enforce a legal code.’” Majority Op. at 19
    (footnote omitted). Yet if that is enough of an injury, then presumably Pennsylvania should
    have had standing in Pennsylvania v. New Jersey, as Pennsylvania was faced with an
    instance where it could avoid injury but would have had to change its laws by “withdrawing
    th[e] credit for taxes paid to New Jersey.” 
    Pennsylvania, 426 U.S. at 664
    . The Court found
    that this was not a traceable injury, suggesting Texas’s injury today is similarly “self-
    inflicted.” 
    Id. 83 Case:
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    with which I agree in full. See generally Texas v. United States, 
    787 F.3d 733
    ,
    769–84 (5th Cir. 2015) (Higginson, J., dissenting).
    Plaintiffs concede that if the DAPA Memorandum is only an exercise in
    enforcement discretion—without granting any “additional benefits”—it is
    unreviewable under 5 U.S.C. § 701(a).17 See Majority Op. at 54 n.156
    (recognizing that “a nonenforcement policy . . . presumptively would be
    committed      to    agency    discretion”);     see    also      Heckler   v.    Chaney,
    
    470 U.S. 821
    , 831 (1985) (“[A]n agency’s decision not to prosecute or enforce,
    whether through civil or criminal process, is a decision generally committed to
    an agency’s absolute discretion.”); Texas v. United States, 
    106 F.3d 661
    , 667
    (5th Cir. 1997) (“An agency’s decision not to take enforcement actions is
    unreviewable . . . .”). Even the district court concluded that “decisions as to
    how to marshal DHS resources, how to best utilize DHS manpower, and where
    to concentrate its activities are discretionary decisions solely within the
    purview of the Executive Branch.” Dist. Ct. 
    Op., 86 F. Supp. 3d at 645
    . But
    those are exactly the type of decisions the DAPA Memorandum contemplates.
    The Memorandum is a statement embodying the Secretary’s tentative
    decision, based on an assessment of the best uses of DHS’s limited resources
    and under his congressionally delegated authority to “[e]stablish[] national
    immigration enforcement policies and priorities,” 6 U.S.C. § 202(5), not to
    remove qualifying applicants for a certain period of time.
    In other words, deferred action itself is merely a brand of “presumptively
    unreviewable”       prosecutorial   discretion.         Majority      Op.   at    35;    see
    8 C.F.R. § 274a.12(c)(14)     (describing      “deferred    action”    as   “an    act    of
    17  For this very reason, Plaintiffs do not challenge the Enforcement Priorities
    Memorandum. See Majority Op. at 35 (“[T]he states have not challenged the priority levels
    [the Secretary] has established.” (footnote omitted)).
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    administrative convenience to the government which gives some cases lower
    priority”); see also 
    Reno, 525 U.S. at 483
    –84 (“At each stage [of the removal
    process] the Executive has discretion to abandon the endeavor, [including by]
    engaging in a regular practice (which had come to be known as ‘deferred
    action’) of exercising that discretion for humanitarian reasons or simply for its
    own convenience.”); Villas at Parkside Partners v. City of Farmers Branch,
    
    726 F.3d 524
    , 545 n.3 (5th Cir. 2013) (en banc) (Dennis, J., concurring)
    (describing DACA as an “exercise of . . . prosecutorial discretion”); Arpaio,
    
    2015 WL 4772774
    , at *3 (“One form of discretion the Secretary of Homeland
    Security exercises is ‘deferred action,’ which entails temporarily postponing
    the removal of individuals unlawfully present in the United States.”);
    6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2014)
    (“To ameliorate a harsh and unjust outcome, the immigration agency may
    decline to institute proceedings, may terminate proceedings, or may decline to
    execute a final order of deportation.          This commendable exercise in
    administrative discretion . . . is now designated as deferred action.”); Steel on
    Immigration Law § 14:42 (2014) (defining “deferred action” as the exercise of
    “discretionary authority by Immigration and Customs Enforcement, before or
    after a removal proceeding, not to remove the alien”). Much like pretrial
    diversion in the criminal context—which also developed over a period of
    decades without express statutory authorization—deferred action channels
    limited resources by allowing certain low-priority offenders to work openly and
    contribute taxes, thus reducing their burden on the system. Notably, such
    prosecutorial discretion is heightened in the immigration context. See Arizona
    v. United States, 
    132 S. Ct. 2492
    , 2499 (2012) (“A principal feature of the
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    removal system is the broad discretion exercised by immigration officials.”);18
    
    Reno, 525 U.S. at 490
    (stating that concerns of judicial intrusion into
    enforcement decisions “are greatly magnified in the deportation context”); see
    also 8 U.S.C. § 1252(g) (stripping courts of jurisdiction “to hear any cause or
    claim by or on behalf of any alien arising from the decision or action by the
    Attorney General to commence proceedings, adjudicate cases, or execute
    removal orders against any alien”).
    To the extent the exercise of deferred action “trigger[s]” other benefits,
    those are not new or “associated” benefits contained within the DAPA
    Memorandum itself. Majority Op. at 35–36.19 Rather, those benefits are a
    function of statutes and regulations that were enacted by Congresses and
    administrations long past—statutes and regulations which, vitally, Plaintiffs
    do not challenge in this action. The ability to apply for work authorization, the
    benefit on which the district court most heavily relied, has been tied to deferred
    action by a federal regulation since the early 1980s. The most current such
    regulation, promulgated in 1987, states that “[a]n alien who has been granted
    deferred action, an act of administrative convenience to the government which
    gives some cases lower priority,” may apply for work authorization “if the alien
    establishes     an    economic      necessity     for    employment.”20          8    C.F.R.
    18The majority repeatedly cites Arizona to support its position, including an assertion
    that “[t]he pervasiveness of federal regulation does not diminish the importance of
    immigration policy to the States.” Majority Op. at 29–30 (citing 
    Arizona, 132 S. Ct. at 2500
    ).
    To say the least, the majority’s reliance on Arizona is misplaced. Arizona repeatedly
    approved of broad discretion in federal immigration enforcement and actually held that a
    state law concerning immigration was preempted.
    19Nor does the DAPA Memorandum do anything to change the eligibility criteria for
    these benefits.
    20 A predecessor regulation enacted in 1981 similarly stated that “[a]ny alien in whose
    case the district director recommends consideration of deferred action, an act of
    administrative convenience to the government which gives some cases lower priority” may
    apply for work authorization “[p]rovided, [t]he alien establishes to the satisfaction of the
    district director that he/she is financially unable to maintain himself/herself and family
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    § 274a.12(c)(14). It is this regulation, not the DAPA Memorandum, which
    affords those granted deferred action the ability to apply for work
    authorization. Plaintiffs did not challenge the validity of this regulation,21 and
    for good reason—it was promulgated via the notice-and-comment process.22
    The majority nevertheless states that § 274a.12(c)(14) as applied “to any class
    of illegal aliens whom DHS declines to remove—is beyond the scope of what
    the INA can reasonably be interpreted to authorize.” Majority Op. at 40. This
    broad holding is very damaging to DHS’s immigration enforcement policy,
    which has operated, from time to time, on a class-wide basis. It stems from a
    deeply flawed reading of the INA that I discuss below.
    Each of the other benefits relied on by the district court and the
    majority—not one of which is even mentioned on the face of the DAPA
    Memorandum—results, if at all, from prior statutes and notice-and-comment
    regulations: (1) the suspension of the accrual of certain time periods for
    without employment.” 46 Fed. Reg. 25,079, 25,081 (May 5, 1981) (formerly codified at
    8 C.F.R. § 109.1(b)(6)).
    21  Plaintiffs suggested at oral argument that they were challenging the statutory
    underpinnings of 8 C.F.R. § 274a.12(c)(14), but that position is inconsistent with their
    briefing on appeal, in which they contend that the work authorization regulation “is not
    facially invalid,” and in which they “assum[e] arguendo that the regulation is valid in all
    applications.” Appellees’ Br. 21 n.9. Moreover, throughout this litigation, Plaintiffs stated
    that they were challenging only the validity of the DAPA Memorandum; this is underscored
    by the complaint, which does not mention any challenge to the validity of 8 C.F.R.
    § 274a.12(c)(14). In any event, Plaintiffs’ minimal and inconsistent briefing as to this issue
    cannot be considered sufficient to mount a challenge to a notice-and-comment regulation that
    has been on the books for decades, and we should not decide this issue. See United States v.
    Scroggins, 
    599 F.3d 433
    , 446 (5th Cir. 2010) (“A party that asserts an argument on appeal,
    but fails to adequately brief it, is deemed to have waived it. It is not enough to merely
    mention or allude to a legal theory.” (internal citations omitted)).
    22 Congress, of course, can limit those to whom work authorization is granted, see
    8 U.S.C. § 1226(a)(3) (barring the Attorney General from granting work authorization to
    aliens who are “arrested and detained pending a decision on whether the alien is to be
    removed from the United States”), but it has not done so with respect to those eligible for
    deferred action under DAPA.
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    purposes of the INA’s illegal reentry bars;23 (2) eligibility for certain Social
    Security and Medicare benefits;24 and (3) the ability to obtain a Social Security
    number.25 Like work authorization, these benefits are conferred not by the
    DAPA Memorandum, but by federal statutes or notice-and-comment
    regulations that are not being directly challenged in this case. And to the
    extent there are “state benefits,” Majority Op. at 36, to individuals granted
    deferred action, those benefits stem from state statutes or regulations, none of
    which is being challenged here. Accordingly, DAPA itself grants no new rights
    or benefits. It merely announces guidelines for the granting of deferred action
    (which may trigger benefits under this framework of preexisting law) in an
    effort to “encourage [qualifying individuals] to come out of the shadows, submit
    to background checks, pay fees, apply for work authorization . . . and be
    23 See 8 U.S.C. § 1182(a)(9)(B)(ii) (passed in 1997) (stating that “[f]or purposes of [the
    illegal entry bars], an alien is deemed to be unlawfully present in the United States if the
    alien is present in the United States after the expiration of the period of stay authorized by
    the Attorney General or is present in the United States without being admitted or paroled”
    (emphasis added)); Dhuka v. Holder, 
    716 F.3d 149
    , 156 (5th Cir. 2013) (“‘[A]uthorized by the
    Attorney General’ describes an exercise of discretion by a public official.” (quoting
    8 U.S.C. § 1182(a)(9)(B)(ii))). DHS contends that this “benefit” is largely irrelevant here, as
    the vast majority of potential DAPA recipients have already accrued sufficient unlawful
    presence to trigger these statutory bars to admissibility.
    24 See 8 U.S.C. § 1611(b)(2)–(3) (passed in 1997) (stating that aliens “lawfully present
    in the United States as determined by the Attorney General” are not barred from receiving
    certain Social Security and Medicare benefits); 8 C.F.R. § 1.3(a)(4)(vi) (promulgated in 2011)
    (defining an “alien who is lawfully present in the United States” to include “[a]liens currently
    in deferred action status”).
    25    See 20 C.F.R. § 422.104(a)(2) (promulgated in 2003) (stating that “[a]n
    alien . . . under other authority of law permitting [the alien] to work in the United States” is
    “eligible for SSN assignment”); 20 C.F.R. § 422.105(a) (promulgated in 2004) (stating that “a
    current document authorized by [DHS] that verifies authorization to work has been granted”
    is sufficient documentation “to enable SSA to issue an SSN card that is valid for work”).
    Under preexisting statutes and regulations, obtaining a Social Security number may also
    trigger other benefits, such as earned income tax benefits. See 26 U.S.C. § 32(c)(1)(E), (m)
    (passed in 1997).
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    counted.”26 Appx. A, at 3. Even absent this announcement, the above benefits
    would attach to any grant of deferred action.
    These tangible benefits aside, the majority concludes that the term
    “lawful presence” itself constitutes a benefit bestowed by the DAPA
    Memorandum because it is “a change in designation that confers eligibility for
    substantial federal and state benefits on a class of otherwise ineligible aliens.”
    Majority Op. at 38. The majority ascribes some added importance to “lawful
    presence.” The Memorandum uses the phrase “lawful presence” to describe
    what deferred action is: “Deferred action . . . simply means that, for a specified
    period of time, an individual is permitted to be lawfully present in the United
    States.” Appx. A, at 2. As the Memorandum makes clear, “[d]eferred action
    does not confer any form of legal status in this country, much less citizenship,”
    and it “may be terminated at any time at the agency’s discretion.” 
    Id. at 2
    ; see
    also 
    Dhuka, 716 F.3d at 156
    (“We conclude that ‘lawful status’ implies a right
    protected by law, while ‘[lawful presence]’ describes an exercise of discretion
    by a public official.”); Chaudhry v. Holder, 
    705 F.3d 289
    , 292 (7th Cir. 2013)
    (“It is entirely possible for aliens to be lawfully present (i.e., in a ‘period of stay
    authorized by the Attorney General’) even though their lawful status has
    expired.”). Thus, “lawful presence” does not “confer[] legal status upon its
    recipients,” Dist. Ct. 
    Op., 86 F. Supp. 3d at 637
    n.45 (emphasis added), nor does
    it constitute “a change in designation,” Majority Op. at 38. Rather, both “lawful
    presence” and “deferred action” refer to nothing more than DHS’s tentative
    decision, revocable at any time, not to remove an individual for the time
    being—i.e., the decision to exercise prosecutorial discretion. Even the majority
    26 Of course, the DAPA Memorandum itself does not grant anyone deferred action.
    Those decisions will be made in the future by DHS agents guided by the DAPA Memorandum.
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    acknowledges that, at its core, “deferred action [is] a nonprosecution decision.”
    
    Id. at 37
    (citing 
    Reno, 525 U.S. at 484
    ).27
    The Memorandum provides guidelines for this exercise of prosecutorial
    discretion, and thus falls squarely within DHS’s “broad discretion to ‘decide
    whether it makes sense to pursue removal at all.’” 
    Id. at 34;
    see also Dist. Ct.
    
    Op., 86 F. Supp. 3d at 645
    (noting the Secretary’s “virtually unlimited
    discretion when prioritizing enforcement objectives and allocating its limited
    resources”). Accordingly, precedent compels the conclusion that this case is
    non-justiciable.28 See 
    Texas, 106 F.3d at 667
    (concluding that an “allegation
    that defendants have failed to enforce the immigration laws . . . is not subject
    to judicial review . . . because a court has no workable standard against which
    to judge the agency’s exercise of discretion”); see also 
    Heckler, 470 U.S. at 831
    (noting “the general unsuitability for judicial review of agency decisions to
    refuse enforcement”); Johns v. Dep’t of Justice, 
    653 F.2d 884
    , 893 (5th Cir.
    1981) (“Th[e] discretion [to commence deportation proceedings] is, like
    prosecutorial discretion, immune from review in the courts.”). That a prior
    statute or regulation ties a benefit to the exercise of prosecutorial discretion
    does not make that ordinarily unreviewable exercise of prosecutorial discretion
    reviewable or turn it into “affirmative agency action.” Majority Op. at 39.
    Rather, the challenge is properly leveled at the prior legislation that does the
    27 Strangely, the majority cites to Reno to support its conclusion that Plaintiffs’ claims
    are justiciable. Reno stressed the broad discretion afforded to federal immigration officials
    and found the case at hand to be non-justiciable based on certain jurisdiction-stripping
    provisions of the INA. 
    Reno, 525 U.S. at 484
    –92.
    28 This approach would not, as Plaintiffs suggest, constitute a “novel extension of
    Heckler,” allowing DHS to insulate grants of benefits from judicial review by attaching them
    to any enforcement policy. Appellees’ Br. 18. Rather, the crucial fact rendering this action
    non-justiciable is that the benefits at issue are not being granted by the Memorandum itself.
    Thus, Plaintiffs’ doomsday scenario of DHS “grant[ing] . . . voting rights . . . in conjunction
    with a non-removal policy,” Appellees’ Br. 18–19, would certainly be reviewable, as no
    preexisting statute or regulation grants voting rights to deferred action recipients.
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    tying. See U.S. Dep’t of Labor v. Kast Metals Corp., 
    744 F.2d 1145
    , 1156 (5th
    Cir. 1984) (deeming a rule non-substantive where the rule’s “substantive
    effect . . . is purely derivative” of preexisting statutes and regulations).
    Plaintiffs’ failure to formally challenge the statutes and regulations discussed
    above—either through the political process at the time of their enactment or
    in this litigation—does not change the equation. It is always a risk that a
    different administration will be more generous with its discretion than the one
    in place at the time the statutes or regulations are passed. Moreover, that
    these decisions will likely be made with respect to a large number of
    individuals, and that DHS seeks to organize the process by memorializing
    these decisions and notifying applicants of the results, does not transform
    deferred action into anything other than an exercise of prosecutorial discretion.
    Rather, as noted above, the scale of this policy is a direct function of Congress’s
    past appropriations decisions.
    Nor can it possibly be maintained that this exercise of prosecutorial
    discretion may be reviewed because DHS, which has been removing
    individuals from the United States in record numbers, “‘consciously and
    expressly adopted a general policy’ that is so extreme as to amount to an
    abdication of its statutory responsibilities.”29 
    Heckler, 470 U.S. at 833
    n.4.
    Although Plaintiffs may prefer a different approach to immigration
    29 In determining that DHS has adopted such a policy, the district court reasoned that
    “the Government here is ‘doing nothing to enforce’ the removal laws against a class of millions
    of individuals.” Dist. Ct. 
    Op., 86 F. Supp. 3d at 663
    (quoting 
    Texas, 106 F.3d at 667
    ). But by
    cabining its sample size only to DAPA-eligible individuals, and ignoring DHS’s record
    number of enforcement efforts against others, the district court’s conclusion was preordained.
    Under the district court’s logic, if DHS grants deferred action to ten individuals, it would
    have “abdicated its duty” to enforce the immigration laws as to those ten individuals—
    rendering that action reviewable. Reading Heckler’s narrow exception so broadly would
    swallow the general rule that “an agency’s decision not to take enforcement action should be
    presumed immune from judicial review.” 
    Heckler, 470 U.S. at 832
    . The majority does not
    appear to endorse this misrepresentation today.
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    enforcement, they “do[] not contend that federal defendants are doing nothing
    to enforce the immigration laws.” 
    Texas, 106 F.3d at 667
    (emphasis added).
    As we have stated, “[r]eal or perceived inadequate enforcement of immigration
    laws does not constitute a reviewable abdication of duty.” Id.; see also 
    Heckler, 470 U.S. at 834
    (“The danger that agencies may not carry out their delegated
    powers with sufficient vigor does not necessarily lead to the conclusion that
    courts are the most appropriate body to police this aspect of their
    performance.”).
    Finally, I would note that characterizing any “associated” benefits as
    flowing exclusively from the DAPA Memorandum—despite the fact that they
    stem from separate legal authorities—sets a dangerous precedent.                               The
    majority concludes that, in order to be reviewable, “DAPA need not directly
    confer public benefits”; merely “removing a categorical bar on receipt of those
    benefits and thereby making a class of persons newly eligible for them
    ‘provides a focus for judicial review.’” Majority Op. at 37. Under this logic, any
    non-enforcement decision that triggers a collateral benefit somewhere within
    the background regulatory and statutory scheme is subject to review by the
    judiciary. As DHS notes, many exercises of prosecutorial discretion trigger
    such benefits. For example, a prosecutor’s decision to place an individual in a
    federal pretrial diversion program in lieu of prosecution may result in that
    individual receiving drug treatment. See Thomas E. Ulrich, Pretrial Diversion
    in the Federal Court System, Fed. Prob., Dec. 2002 at 30, 32.30                      At the very
    least, the majority’s reasoning would render reviewable every single exercise
    30  While the majority suggests DAPA is more than “nonprosecution” because it
    “remov[es] a categorical bar on [the] receipt of . . . benefits,” Majority Op. at 37, diversion also
    removes a categorical bar on the receipt of benefits as convicted drug offenders are otherwise
    ineligible for certain public benefits. See, e.g., 21 U.S.C. § 862a(a) (preventing these offenders
    from receiving TANF and food stamps).
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    of deferred action—programmatic or ad hoc—as any grant of deferred action
    triggers benefits under the statutes and regulations discussed above. While
    the district court distinguished away many past exercises of deferred action as
    “different in kind and scope” from DAPA for the purposes of reviewability, 31
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 664
    , the majority does not cabin its conclusion.
    In fact, it suggests that all exercises of deferred action would be subject to
    judicial scrutiny. Majority Op. at 35 (“Deferred action . . . is much more than
    nonenforcement.”)
    This is logic to which I cannot subscribe.                Because the DAPA
    Memorandum contains only guidelines for the exercise of prosecutorial
    discretion and does not itself confer any benefits to DAPA recipients, I would
    deem this case non-justiciable. The policy decisions at issue in this case are
    best resolved not by judicial fiat, but via the political process. That this case
    essentially boils down to a policy dispute is underscored not only by the dozens
    of amicus briefs filed in this case by interested parties across the ideological
    spectrum—Mayors, Senators, Representatives, and law enforcement officials,
    among others—but also by the district court’s opinion, which repeatedly
    expresses frustration that the Secretary is “actively act[ing] to thwart” the
    immigration laws and “is not just rewriting the laws [but is] creating them
    from scratch.” Dist. Ct. 
    Op., 86 F. Supp. 3d at 663
    . The majority’s observation
    that this suit involves “policy disagreements masquerading as legal claims” is
    also telling.    Majority Op. at 27.         Whether or not the district court’s
    characterization of this case is accurate—though the record number of
    removals in recent years demonstrates that it is not—to the extent some are
    31 As noted by DHS and various amici, the granting of deferred action—even to whole
    classes of individuals—has occurred for decades, under both Republican and Democratic
    administrations.
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    unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the
    political process, not in litigation. See Mathews v. Diaz, 
    426 U.S. 67
    , 81 (1976)
    (“For reasons long recognized as valid, the responsibility for regulating the
    relationship between the United States and our alien visitors has been
    committed to the political branches of the Federal Government.”). Congress is
    free to constrain DHS’s discretion, and, ultimately, the voters are free to
    express their approval or disapproval of DAPA through their choice of elected
    officials. See Lincoln v. Vigil, 
    508 U.S. 182
    , 193 (1993) (“[W]e hardly need to
    note that an agency’s decision to ignore congressional expectations may expose
    it to grave political consequences.”).
    Accordingly, this case should be dismissed on justiciability grounds.
    However, for the sake of thoroughness and to correct serious errors committed
    by the district court in granting the preliminary injunction and the majority in
    affirming that grant, I discuss below the merits of both APA claims.
    IV.    APA Procedural Claim
    Our precedent is clear: “As long as the agency remains free to consider
    the individual facts in the various cases that arise, then the agency action in
    question has not established a binding norm,” and thus need not go through
    the procedures of notice-and-comment. Prof’ls & Patients for Customized Care
    v. Shalala, 
    56 F.3d 592
    , 596–97 (5th Cir. 1995) (citation omitted).32 Therefore,
    32As the Fifth Circuit has noted, in determining whether a rule is substantive, and
    thus subject to notice-and-comment procedures, we must “focus[] primarily on whether the
    rule has binding effect on agency discretion or severely restricts it.” Prof’ls & 
    Patients, 56 F.3d at 595
    (footnote omitted). Plaintiffs now appear to argue (for the first time) on appeal
    that regardless of the discretion it confers, the DAPA Memorandum is a substantive rule
    because it “changed the law” by granting benefits to 4.3 million individuals. But as discussed
    above, the DAPA Memorandum itself confers no additional benefits. Moreover, the scale of
    the program has no bearing on the substantive rule inquiry—i.e., whether the policy will be
    administered with case-by-case discretion. See id.; McLouth Steel Prods. Corp. v. Thomas,
    
    838 F.2d 1317
    , 1320 (D.C. Cir. 1988) (“The question for purposes of [5 U.S.C.] § 553 is whether
    a statement is a rule of present binding effect; the answer depends on whether the statement
    constrains the agency’s discretion.”). Indeed, Plaintiffs put it best in a letter brief filed with
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    in order for Plaintiffs to establish a substantial likelihood of success on the
    merits—the required showing for a preliminary injunction, Jackson Women’s
    Health Org. v. Currier, 
    760 F.3d 448
    , 452 (5th Cir. 2014)—Plaintiffs bore the
    burden of demonstrating that the Memorandum was non-discretionary. As the
    majority admits, the Memorandum “facially purports to confer discretion.”
    Majority Op. at 44.     But the district court ignored this clear language,
    concluding that agency officials implementing DAPA will defy the
    Memorandum and simply rubberstamp applications. In so doing, the district
    court disregarded a mountain of highly probative evidence from DHS officials
    charged with implementing DAPA, relying instead on selected excerpts of the
    President’s public statements, facts relating to a program materially
    distinguishable from the one at issue here, and improper burden-shifting. The
    majority now adopts the district court’s conclusions wholesale and without
    question. 
    Id. at 5
    0. For the reasons set out below, I would hold that the
    Memorandum is nothing more than a general statement of policy and that the
    district court’s findings cannot stand, even under clear error review.
    A.     The Language and Substance of the DAPA Memorandum
    In determining whether the DAPA Memorandum constitutes a
    substantive rule, we must begin with the words of the Memorandum itself. See
    Prof’ls & 
    Patients, 56 F.3d at 596
    . The Memorandum states that it reflects
    “new policies,” Appx. A, at 1, and “guidance for case-by-case use of deferred
    action,” Appx. A, at 3.       Accordingly, the Secretary characterizes the
    Memorandum as a “general statement[] of policy”—which is not subject to the
    notice-and-comment process.      5 U.S.C. § 553(b)(3)(A); see also Prof’ls &
    
    Patients, 56 F.3d at 596
    (“[T]he description as ‘policy’ in the [statement]
    the district court: “To be sure, ‘case-by-case discretion’ determines whether the
    [Memorandum] is a ‘substantive rule’ under the APA.”
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    itself . . . militate[s] in favor of a holding that [the statement] is not a
    substantive rule.”). The Memorandum also repeatedly references (more than
    ten times) the discretionary, “case-by-case” determinations to be made by
    agents in deciding whether to grant deferred action.                    It emphasizes that,
    despite the criteria contained therein, “the ultimate judgment as to whether
    an immigrant is granted deferred action will be determined on a case-by-case
    basis.”33 Appx. A, at 5; see also Ass’n of Flight Attendants-CWA v. Huerta, 
    785 F.3d 710
    , 717 (D.C. Cir. 2015) (stating that a document “riddled with caveats
    is not” likely to constitute a substantive rule); Brock v. Cathedral Bluffs Shale
    Oil Co., 
    796 F.2d 533
    , 538 (D.C. Cir. 1986) (Scalia, J.) (concluding that agency
    guidelines for determining when to take enforcement action against mine
    operators did not constitute a substantive rule where “[t]he language of the
    guidelines is replete with indications that the Secretary retained his discretion
    to cite production-operators as he saw fit”). Indeed, this court has already
    recognized the “discretion expressly granted under” DAPA—discretion that
    allows “agent[s] to deal with each alien on a case by case basis.” Crane v.
    33 The Memorandum also states that (1) “DHS must exercise prosecutorial discretion
    in the enforcement of the law”; (2) our immigration laws “are not designed to be blindly
    enforced without consideration given to the individual circumstances of each case”; (3)
    “[d]eferred action is a form of prosecutorial discretion by which the Secretary deprioritizes
    an individual’s case for humanitarian reasons, administrative convenience, or in the interest
    of the Department’s overall enforcement mission”; (4) “deferred action is legally available so
    long as it is granted on a case-by-case basis, and it may be terminated at any time at the
    agency’s discretion”; (5) “[h]istorically, deferred action has been used . . . on a case-by-case
    basis”; (6) “I am now expanding certain parameters of DACA and issuing guidance for case-
    by-case use of deferred action”; (7) “[c]ase-by-case exercises of deferred action for children and
    long-standing members of American society who are not enforcement priorities are in this
    Nation’s security and economic interests”; (8) “I hereby direct USCIS to establish a
    process . . . for exercising prosecutorial discretion through the use of deferred action, on a
    case-by-case basis”; (9) “ICE is . . . instructed to review pending removal cases . . . of
    individuals identified who meet the above criteria, and to refer such individuals to USCIS for
    case-by-case determinations”; and (10) “[i]t remains within the authority of the Executive
    Branch . . . to set forth policy for the exercise of prosecutorial discretion and deferred action
    within the framework of existing law.” Appx. A, at 1–5.
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    Johnson, 
    783 F.3d 244
    , 255 (5th Cir. 2015) (concluding that, on the record in
    Crane, the plaintiffs lacked standing to challenge DACA).
    The discretionary nature of the DAPA Memorandum is further
    supported by the policy’s substance. Although some of the Memorandum’s
    criteria can be routinely applied,34 many will require agents to make
    discretionary judgments as to the application of the respective criteria to the
    facts of a particular case. For example, agents must determine whether an
    applicant “pose[s] a danger to national security,” Appx. B, at 3, whether the
    applicant is “a threat to . . . border security” or “public safety,” Appx. B, at 4,
    and whether the applicant has “significantly abused the visa or visa waiver
    programs,”35 Appx. B, at 4. Such criteria cannot be mechanically applied, but
    rather entail a degree of judgment; in other words, they are “imprecise and
    discretionary—not exact and certain.”36 Prof’ls & 
    Patients, 56 F.3d at 600
    (concluding that an FDA policy delineating nine factors the agency should
    consider in determining whether to bring an enforcement action did not
    constitute a substantive rule). This aspect of the DAPA Memorandum appears
    to have been overlooked by the district court, which—in analyzing whether the
    Memorandum allows for case-by-case discretion—was fixated on the extent to
    which applicants meeting DAPA’s criteria would nonetheless be denied
    34For example: whether the applicant has “a son or daughter who is a U.S. citizen or
    lawful permanent resident.” Appx. A, at 4.
    Although these criteria come from the Enforcement Priorities Memorandum, the
    35
    DAPA Memorandum incorporates these criteria into its own, stating that deferred action
    may be granted to individuals who “are not an enforcement priority as reflected in the”
    Enforcement Priorities Memorandum. Appx. A, at 4.
    36 Similarly, an agent implementing the DACA Memorandum must make the
    threshold discretionary determinations of whether the applicant has been convicted of “a
    significant misdemeanor,” and whether the applicant “poses a threat to national security or
    public safety.” And as we concluded in Crane, the DACA Memorandum too “makes it clear
    that the Agents shall exercise their discretion in deciding to grant deferred action, and this
    judgment should be exercised on a case-by-case basis.” 
    Crane, 783 F.3d at 254
    –55.
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    deferred action.37    Such an approach ignores the fact that applying these
    threshold criteria itself involves an exercise of discretion.
    Most strikingly, the last criterion contained in the DAPA Memorandum
    is entirely open-ended, stating that deferred action should be granted only if
    the applicant “present[s] no other factors that, in the exercise of discretion,
    makes the grant of deferred action inappropriate.”              Appx. A, at 4.       The
    Memorandum does not elaborate on what such “other factors” should be
    considered—leaving this analysis entirely to the judgment of the agents
    processing the applications.         This court has held that such a caveat
    “express[ing] that [a] list of . . . factors is neither dispositive nor exhaustive,”
    “clearly leaves to the sound discretion of the agency in each case the ultimate
    decision whether to bring an enforcement action.” Prof’ls & 
    Patients, 56 F.3d at 600
    –01. Indeed, construing the DAPA memorandum as a categorical grant
    of deferred action for all applicants meeting the other DAPA criteria would
    render this last criterion meaningless. Cf. 
    Brock, 796 F.2d at 538
    . Thus, due
    to the presence of these various flexible and indefinite criteria, the DAPA
    Memorandum is not a substantive rule that “so fills out the statutory scheme
    that upon application one need only determine whether a given case is within
    the rule’s criterion.” 
    Huerta, 785 F.3d at 718
    (citation omitted); cf. Pickus v.
    U.S. Bd. of Parole, 
    507 F.2d 1107
    , 1113 (D.C. Cir. 1974) (concluding that the
    “formula like” guidance for determining the length of parole constituted a
    substantive rule, as it involved the “purely mechanical operation” of computing
    a score using exclusive criteria).
    37  The majority perpetuates this error today by accepting the district court’s
    characterizations of DAPA without question—despite recognizing that there was “conflicting
    evidence” below and that extrapolating DAPA from DACA needed to “be done carefully.”
    Majority Op. at 47, 49.
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    As Judge Kavanaugh, writing for the D.C. Circuit, has stated, “[t]he most
    important factor” in distinguishing between a substantive rule and a general
    statement of policy “concerns the actual legal effect (or lack thereof) of the
    agency action in question on regulated entities.”                   Nat’l Mining Ass’n v.
    McCarthy, 
    758 F.3d 243
    , 252 (D.C. Cir. 2014). Here, the Memorandum makes
    clear that it “confers no substantive right, immigration status or pathway to
    citizenship.”    Appx. A, at 5.        The majority suggests that DAPA “modifies
    substantive rights and interests,” by “conferring lawful presence on 500,000
    illegal aliens” and forcing Texas to change its laws. Majority Op. at 50–51.
    None of this appears on the face of the Memorandum though.38 In fact, nothing
    in the Memorandum indicates that it is legally binding—i.e., that an applicant
    who is not granted deferred action can challenge that decision in court, or that
    DHS would be barred from removing an applicant who appears to satisfy the
    Memorandum’s criteria. See Tex. Sav. & Cmty. Bankers Ass’n v. Fed. Hous.
    Fin. Bd., 
    201 F.3d 551
    , 556 (5th Cir. 2000) (“Substantive or legislative rules
    affect individual rights and obligations and are binding on the courts.”); cf.
    Cmty. Nutrition Inst. v. Young, 
    818 F.2d 943
    , 948 (D.C. Cir. 1987) (per curiam)
    (deeming enforcement criteria a substantive rule where, “[a]s FDA conceded at
    oral argument, it would be daunting indeed to try to convince a court that the
    agency could appropriately prosecute a producer [who did not meet the
    agency’s criteria for enforcement]”).             Nor does anyone assert that the
    Memorandum “impose[s] any obligation or prohibition on regulated entities,”
    i.e., the potential DAPA applicants.39 
    Huerta, 785 F.3d at 717
    ; cf. Heckler,
    38“Lawful presence,” as previously indicated, is also not a substantive right, but rather
    a form of nonprosecution that can be revoked at any time. Any purported harm to Texas is
    incidental and not contemplated by DAPA.
    The majority suggests that there is a “burden imposed on Texas” by DAPA and even
    39
    then concedes that this “is derivative of issuing lawful presence to beneficiaries.”
    99
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    15-40238 470 U.S. at 832
    (“[W]hen an agency refuses to act it generally does not exercise
    its coercive power over an individual’s liberty or property rights, and thus does
    not infringe upon areas that courts often are called upon to protect.”).
    Moreover, even absent the DAPA Memorandum, DHS would have the
    authority to take the action of which Plaintiffs complain—i.e., by granting
    deferred action on an ad hoc basis. See 
    McCarthy, 758 F.3d at 253
    (“When the
    agency applies a general statement of policy in a particular situation, it must
    be prepared to support the policy just as if the policy statement had never been
    issued.” (internal brackets omitted)). Accordingly, based on its language and
    substance, the Memorandum does not constitute a binding substantive rule
    subject to the requirements of notice-and-comment.
    The majority recognizes that the plain language of Memorandum
    “facially purports to confer discretion” and does not argue that DAPA creates
    a substantive rule from its four corners alone.                     Majority Op. at 44.
    Nonetheless, the district court reached the opposite conclusion. And it bears
    identifying the errors committed by the district court in holding that DAPA
    was a substantive rule on its face.
    The district court focused on the Memorandum’s “mandatory term[s],
    instruction[s], [and] command[s]”—in particular, the Secretary’s “direct[ion]”
    to USCIS to begin implementing DAPA. Dist. Ct. 
    Op., 86 F. Supp. 3d at 671
    n.103. But it should be no surprise that the Memorandum “direct[s]” the
    USCIS to establish a process for implementing this guidance, Appx. A, at 4;
    certainly the Secretary did not intend for it to be ignored, see Prof’ls & 
    Patients, 56 F.3d at 599
    (“[W]hat purpose would an agency’s statement of policy serve if
    agency employees could not refer to it for guidance?”).                     Although “the
    Majority Op. at 52. But the analysis centers on the effect of the policy statement on regulated
    entities, and Texas is plainly not regulated by or even mentioned in the DAPA Memorandum.
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    mandatory tone of the factors is undoubtedly calculated to encourage
    compliance,” such language does not transform a statement of policy into a
    substantive rule so long as there is “an opportunity for individualized
    determinations.” 
    Id. at 5
    97. Our discussion in Professionals and Patients is
    particularly instructive on this point:
    True, the FDA had even greater discretion in bringing
    enforcement actions before [the policy for determining whether to
    bring enforcement actions against pharmacies] issued; prior to
    that time inspectors were apparently provided with no official
    guidance whatsoever. In that sense, therefore, [the policy] has
    “channeled”    the   FDA’s    enforcement     discretion,   providing
    direction—where once there was none—by helping to determine
    whether a pharmacy is engaged in traditional compounding or
    drug manufacturing.       But all statements of policy channel
    discretion to some degree—indeed, that is their purpose. The more
    cogent question therefore is whether [the policy] is so restrictive in
    defining which pharmacies are engaged in drug manufacturing
    that it effectively removes most, if not all, of the FDA’s discretion
    in deciding against which pharmacies it will bring an enforcement
    action. We cannot read [the policy] that restrictively.
    
    Id. at 600.
    Nor should the DAPA Memorandum be read so restrictively.
    Its channeling of agency enforcement discretion—through the use of non-
    exhaustive, flexible criteria—is entirely consistent with a non-substantive
    rule.    See, e.g., Nat’l Roofing Contractors Ass’n v. U.S. Dep’t of Labor,
    
    639 F.3d 339
    , 341–42 (7th Cir. 2011) (“The Secretary committed to paper the
    criteria for allowing regulatory violations to exist without redress, a step
    essential to control her many subordinates. This does not make the exercise
    less discretionary.”); Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins.
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    Corp., 
    589 F.2d 658
    , 667 (D.C. Cir. 1978) (“The mandatory tone of the
    specifications for audits and auditors doubtless encourages compliance.
    However, an opportunity for an individualized determination is afforded.”); see
    also Kast Metals 
    Corp., 744 F.2d at 1152
    n.13 (“[A]gency instructions to agency
    officers are not legislative rules.”). This is the law for good reason. Requiring
    each and every policy channeling prosecutorial discretion to go through the
    notice-and-comment process would perversely encourage unwritten, arbitrary
    enforcement policies.
    The plain language of the Memorandum cannot be characterized as
    “draw[ing] a ‘line in the sand’ that, once crossed, removes all discretion from
    the agency.” Prof’ls & 
    Patients, 56 F.3d at 601
    . Furthermore, the fact that the
    DAPA Memorandum relates to two areas in which courts should be reluctant
    to interfere—immigration and prosecutorial discretion—counsels in favor of
    concluding that it does not constitute a substantive rule.            See 
    Brock, 796 F.2d at 538
    (“Our decision [that the rule is non-substantive] is reinforced
    by the fact that the statement here in question pertains to an agency’s exercise
    of its enforcement discretion—an area in which the courts have traditionally
    been most reluctant to interfere.”).
    Rather than relying on the language of the Memorandum, the majority
    concludes that DAPA is a substantive rule because it “would not genuinely
    leave [DHS] and its employees free to exercise discretion” in practice.
    Majority Op. at 50; see also Prof’ls & 
    Patients, 56 F.3d at 595
    (quoting 
    Young, 818 F.2d at 946
    ). But in doing so, the majority relies unquestioningly on the
    district court’s finding that the discretionary language in DAPA was “merely
    pretext” and that DHS officials would not exercise case-by-case discretion of
    removals under DAPA.         Majority Op. at 44; see also 
    id. at 5
    2 (“DAPA
    establishes ‘the substantive standards by which the [agency] evaluates
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    applications.” (alterations in original)). The district court’s finding was clearly
    erroneous, however, and I turn to it next.
    B.      Evidence of Pretext
    The district court erred not only in its analysis of the legal effect of the
    DAPA Memorandum, but also in its resolution of the facts. By eschewing the
    plain language of the Memorandum, and concluding that its discretionary
    aspects are “merely pretext,” Dist. Ct. 
    Op., 86 F. Supp. 3d at 669
    n.101, the
    district court committed reversible error. To the extent the district court’s
    pretext conclusion constitutes a factual finding entitled to “clear error” review,
    that does not mean that we “rubber stamp the district court’s findings simply
    because they were entered.” McLennan v. Am. Eurocopter Corp., 
    245 F.3d 403
    ,
    409 (5th Cir. 2001). Rather, “[c]lear error exists when this court is left with
    the definite and firm conviction that a mistake has been made.” Ogden v.
    Comm’r, 
    244 F.3d 970
    , 971 (5th Cir. 2001) (per curiam). I am left with such a
    conviction for three independent reasons: (1) the record lacks any probative
    evidence of DAPA’s implementation; (2) the district court erroneously equated
    DAPA with DACA; and (3) even assuming DAPA and DACA can be equated,
    the evidence of DACA’s implementation fails to establish pretext.
    It is true that the plain language of the Memorandum—which, in the
    majority’s words, “facially purports to confer discretion”—may not be
    conclusive if rebutted by “what the agency does in fact.” Prof’ls & 
    Patients, 56 F.3d at 596
    . Here, however, there is no such evidence of what the agency
    has done “in fact,” as DAPA has yet to be implemented. The district court ruled
    even before it had “an early snapshot” of the policy’s implementation.
    
    McCarthy, 758 F.3d at 253
    (stating that, “because . . . recently issued guidance
    will have been implemented in only a few instances,” courts “look[ing] to post-
    guidance events to determine whether the agency has applied the guidance as
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    if it were binding” must rely on “an early snapshot”).40 Plaintiffs have cited no
    authority, and I am not aware of any, deeming a statement of policy pretextual
    without direct evidence of the policy’s implementation. Cf. Interstate Nat. Gas
    Ass’n of Am. v. FERC, 
    285 F.3d 18
    , 60 (D.C. Cir. 2002) (“[I]f there have so far
    been any applications of the [agency]’s policy, neither side has seen fit to bring
    it to our attention. So there is no basis here for any claim that the [agency]
    has actually treated the policy with the de facto inflexibility of a binding
    norm.”). Nor should pretext be found here absent such evidence. As noted at
    the outset, courts should not be quick to conclude that when a coordinate
    branch of government describes a policy as discretionary, it does not mean
    what it says.
    How, then, did the district court reach the conclusion that the DAPA
    Memorandum’s express inclusion of case-by-case discretion is “merely
    pretext”? First, the district court selectively relied on public statements the
    President made in describing the DAPA Memorandum to the public.
    Majority Op. at 46. But there is no precedent for a court relying on such
    general pronouncements in determining a program’s effect on the agency and
    on those being regulated. As Judge Higginson aptly noted in his dissent from
    40 As several amici argue, a challenge to a statement of policy as pretextual may be
    unripe prior to the policy’s implementation. For example, where:
    [T]he facts are so wholly ambiguous and unsharpened as not to present
    a purely legal question ‘fit . . . for judicial decision,’ and where the agency’s
    characterization of its action would fit them cleanly into a § 553
    exemption, . . . the most prudent course [is] to await the sharpened facts that
    come from the actual workings of the regulation in question before striking the
    objective down as violative of the APA.
    Am. Hosp. Ass’n v. Bowen, 
    834 F.2d 1037
    , 1056 (D.C. Cir. 1987) (first alteration in
    original) (internal citation omitted); see Hudson v. FAA, 
    192 F.3d 1031
    , 1034–35 (D.C. Cir.
    1999); Pub. Citizen, 
    Inc., 940 F.2d at 683
    .
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    the denial of the motion for a stay, “Presidents, like governors and legislators,
    often describe [a] law enthusiastically yet defend the same law narrowly.”
    
    Texas, 787 F.3d at 780
    (Higginson, J., dissenting); see also Prof’ls & 
    Patients, 56 F.3d at 599
    (reasoning that “informal communications often exhibit a lack
    of ‘precision of draftsmanship’ and . . . internal inconsistencies” and thus are
    “entitled to limited weight”).41 More importantly, the statements relied upon
    by the district court are not inconsistent with the DAPA Memorandum’s grant
    of discretion to agency decision makers.                For example, the President’s
    statement that those who “meet the [DAPA] criteria . . . can come out of the
    shadows,” Dist. Ct. 
    Op., 86 F. Supp. 3d at 668
    , does not suggest that
    applications will be rubberstamped, given that (as discussed above) those very
    criteria involve the exercise of discretion. Similarly, the President’s suggestion
    that agents who do not follow DAPA’s guidelines may suffer consequences does
    not support the conclusion that the Memorandum is pretextual. Rather, it
    supports the opposite conclusion—that the terms of the DAPA Memorandum,
    which incorporate case-by-case discretion, will be followed. An order to “use
    your discretion” is not a substantive rule.
    The district court’s reliance on language contained in DHS’s DAPA
    website—a source apparently not even cited by the parties and not mentioned
    by the majority—rests on even shakier ground. According to the district court,
    the DHS website’s characterization of DAPA as a “program” and an “initiative”
    somehow contradicts DHS’s position that the Memorandum constitutes
    “guidance.” Of course, DAPA may very well be all three, but this has no
    bearing on whether the Memorandum constitutes a substantive rule—i.e.,
    41The majority appears to endorse the district court’s reliance on presidential
    statements as it too cites the President’s remark that he “‘change[d] the law’” as support for
    concluding that DAPA is beyond the scope of the INA. Majority Op. at 65.
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    whether the “program” or “initiative” or “guidance” genuinely allows the
    agency to exercise its discretion on a case-by-case basis. Even more dubious is
    the district court’s argument that, by using the word “initiative” on its website,
    DHS was intending to use the word in its technical legal sense to reference
    voter initiatives, thus implying a “legislative process.”42 
    Id. at 667–68.
           Lacking any probative evidence as to DAPA’s implementation, the
    district court relied most heavily on evidence of DACA’s implementation—
    concluding unequivocally that DAPA will be “implemented exactly like DACA.”
    
    Id. at 663.
    It is this analysis that the majority finds convincing, all the while
    noting that “any extrapolation from DACA must be done carefully.” Majority
    Op. at 47. The district court reached this conclusion on two flawed bases:
    (1) the DAPA Memorandum’s statement directing the USCIS to “establish a
    process, similar to DACA” for implementing DAPA, Appx. A, at 4; and (2) the
    “lack of any suggestion that DAPA will be implemented in a fashion different
    from DACA,” Dist. Ct. 
    Op., 86 F. Supp. 3d at 649
    . With respect to the former,
    this single, nebulous statement does not specify how the DAPA and DACA
    processes would be similar; the phrase cannot be construed to mean that DAPA
    and DACA will be implemented identically.                   The latter is pure burden-
    shifting—the district court implies that the burden is on DHS to show that the
    two programs will be implemented differently. Of course, in the preliminary
    injunction context, Plaintiffs, “by a clear showing, carr[y] the burden of
    persuasion.” Harris Cnty. v. CarMax Auto Superstores Inc., 
    177 F.3d 306
    , 312
    42 The district court noted that this voter initiative definition is the “sole definition
    offered for ‘initiative’” in Black’s Law Dictionary. Dist. Ct. 
    Op., 86 F. Supp. 3d at 668
    . There
    are, of course, other dictionaries—dictionaries far more likely to capture DHS’s intended use
    of the word in a website created to describe DAPA to the public (rather than to attorneys or
    judges). For example, the first definition of “initiative” in the Oxford English Dictionary is
    “[t]hat which initiates, begins, or originates,” Initiative, The Oxford English Dictionary (2d
    ed. 1989)—a definition that certainly does not imply a binding norm.
    106
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    (5th Cir. 1999).    The district court also completely ignored the statement
    contained in the Declaration of Donald W. Neufeld—the Associate Director for
    Service Center Operations for USCIS—that “USCIS is in the process of
    determining the procedures for reviewing requests under DAPA, and thus
    USCIS has not yet determined whether the process to adjudicate DAPA
    requests will be similar to the DACA process.”
    More importantly, the fact that the administration of the two programs
    may be similar is not evidence that the substantive review under both programs
    will be the same. As discussed in more detail below, the district court relied
    heavily on the denial rates of applications submitted under DACA. But those
    rates are irrelevant for one simple reason, a reason the district court failed to
    confront: the substantive criteria under DACA and DAPA are different. And
    even the majority concedes that “DACA and DAPA are not identical.”
    Majority Op. at 47.    Review under the DACA Memorandum does not, for
    example, require reference to the various discretionary factors contained in the
    Enforcement Priorities Memorandum, nor does DACA contain DAPA’s
    criterion that the applicant “present no other factors that, in the exercise of
    discretion, makes the grant of deferred action inappropriate.” Appx. A, at 4;
    see also Majority Op. at 48 (“Further, the DAPA Memo contains additional
    discretionary criteria.”). Thus, even assuming DACA and DAPA applications
    are reviewed using the exact same administrative process, the district court
    had no basis for concluding that the results of that process—a process that
    would involve the application of markedly different, discretionary criteria—
    would be the same. For this reason alone—that is, the district court’s heavy
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    reliance upon this minimally probative evidence—I would conclude that the
    district court clearly erred.43
    There are additional reasons, however, to discount the DACA-related
    evidence on which the district court based its decision and which the majority
    now accepts. First, even assuming DACA’s 5% denial rate has some probative
    value, and assuming that rate can be properly characterized as low,44 a low
    rate would be unsurprising given the self-selecting nature of the program, as
    the majority concedes. Majority Op. at 47. It should be expected that only
    those highly likely to receive deferred action will apply; otherwise, applicants
    would risk revealing their immigration status and other identifying
    information to authorities, thereby risking removal (and the loss of a sizeable
    fee). The majority recognizes this issue but finds that it “is partially mitigated
    by the finding that ‘the [g]overnment has publicly declared that it will make
    no attempt to enforce the law against even those who are denied deferred
    action.” 
    Id. (citing Dist.
    Ct. 
    Op., 86 F. Supp. 3d at 663
    ).                But this public
    declaration, cited by the district court, comes from an informational DHS
    website that never states that DHS will make no attempt to enforce the law.45
    43 In addition, as Judge Higginson noted in his dissent, DACA is materially
    distinguishable from DAPA because the former applies only to “a subset of undocumented
    immigrants who are particularly inculpable as they ‘were brought to this country as children’
    and, thus, ‘lacked the intent to violate the law.’” 
    Texas, 787 F.3d at 781
    (Higginson, J.,
    dissenting) (quoting the DACA Memorandum). Accordingly, it would be reasonable to expect
    that denial rates under DAPA would be higher than those under DACA, as DACA applicants
    are far less likely to exhibit other factors (e.g., a threat to national security) that would
    prompt an exercise of discretion not to grant deferred action.
    44This rate represents 38,080 denials out of the 723,358 applications accepted for
    processing at USCIS service centers through December 2014. There were an additional
    42,919 applications rejected for purely administrative reasons during this time period.
    Neither of these numbers suggests an agency on autopilot.
    45The majority’s acceptance of this passage is but one illustration of the problem with
    relying on the district court’s factual conclusions.
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    The district court also erred in its mischaracterization of a letter written
    by León Rodríguez, Director of USCIS, to Senator Charles Grassley, suggesting
    that the top four reasons for DACA denials are:
    (1) the applicant used the wrong form; (2) the applicant
    failed to provide a valid signature; (3) the applicant failed to file or
    complete Form I-765 or failed to enclose the fee; and (4) the
    applicant was below the age of fifteen and thus ineligible to
    participate in the program.
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 609
    . This, however, is not what the letter
    says. The letter actually states that these were the top four reasons for DACA
    application rejections, not denials.       As made clear in DHS’s Neufeld
    Declaration, “a DACA request is ‘rejected’ when [it is] determine[d] upon intake
    that the [application] has a fatal flaw,” while “[a] DACA request is ‘denied’
    when a USCIS adjudicator, on a case-by-case basis, determines that the
    requestor has not demonstrated that they satisfy the guidelines for DACA or
    when an adjudicator determines that deferred action should be denied even
    though the threshold guidelines are met.”          By conflating rejections with
    denials, the district court suggested that most denials are made for mechanical
    administrative reasons and thus could not have been discretionary. But the
    five percent denial rate does not even take into account these administrative
    rejections.
    The district court also appeared singularly focused on one metric for
    measuring whether DACA (and by implication, DAPA) is implemented in a
    discretionary manner. The court insisted that DHS provide: “the number, if
    any, of requests that were denied even though the applicant met the DACA
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    criteria as set out in Secretary Napolitano’s DACA memorandum.”46 
    Id. at 609.
    In yet another instance of improper burden-shifting, the court reasoned that
    “[b]ecause the Government could not produce evidence concerning applicants
    who met the program’s criteria but were denied DACA status, this Court
    accepts the States’ evidence as correct.” 
    Id. at 609
    n.8. But the burden of
    showing DAPA is non-discretionary was on Plaintiffs—the States—and
    Plaintiffs provided no evidence as to the number of these denials. Rather, the
    district court accepted as true Plaintiffs’ bare assertion that there were no such
    denials, concluding unequivocally that “[n]o DACA application that has met
    the criteria has been denied based on an exercise of individualized discretion.”
    
    Id. at 669
    n.101. The district court reached this conclusion in the face of
    uncontested evidence contained in the Neufeld Declaration that DACA
    applications “have also been denied on the basis that deferred action was not
    appropriate for other reasons not expressly set forth in [the] 2012 DACA
    Memorandum.” The district court also failed to acknowledge the reason DHS
    did not introduce statistics as to these denials: it had no ability to do so. As
    stated in the Neufeld Declaration, “[u]ntil very recently, USCIS lacked any
    ability to automatically track and sort the reasons for DACA denials,”
    presumably because it had no reason to track such data prior to this litigation.
    Although this point is undisputed, the district court and now the majority
    nonetheless fault DHS for failing to provide the information the district court
    requested. See Majority Op. at 50 (“[T]he government did not provide the
    number of cases that service-center officials referred to field offices for
    interviews.”). Yet it was not DHS’s burden to disprove Plaintiffs’ assertions of
    46As discussed above, this focus was misplaced, as application of both the DACA and
    DAPA criteria themselves involves the exercise of discretion.
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    pretext, nor must DHS (anticipatorily) track data in a way that may be
    convenient to an adversary in future litigation.
    The district court also relied on a four-page declaration by Kenneth
    Palinkas, President of the National Citizenship and Immigration Services
    Council (the union representing USCIS employees processing DACA
    applications), for the proposition that “DACA applications are simply
    rubberstamped if the applicants meet the necessary criteria.”47 Dist. Ct. 
    Op., 86 F. Supp. 3d at 610
    . Yet lay witness conclusions are only competent evidence
    if rationally drawn from facts personally observed. See Fed. R. Evid. 701.
    Here, Palinkas’s conclusion was supported only by the fact that DACA
    applications are routed to “service centers instead of field offices,” and that
    “USCIS officers in service centers . . . do not interview applicants”—a weak
    basis on which to conclude that DHS’s representations (both to the public and
    to the courts) are “merely pretext.”48 See 11A Charles Alan Wright & Arthur
    R. Miller, Federal Practice & Procedure § 2949 (3d ed. 2015) (“Preliminary
    injunctions frequently are denied if the affidavits are too vague or conclusory
    to demonstrate a clear right to relief under Rule 65.”). Indeed, Palinkas’s
    assertions are rebutted—and the step-by-step process for reviewing DACA
    applications is explained—in the detailed affidavit filed by Donald Neufeld, the
    head of those very USCIS service centers. Neufeld declares that the service
    centers “are designed to adjudicate applications, petitions and requests” for
    various programs “that have higher-volume caseloads.” Neufeld goes on to
    describe       the   “multi-step,      case-specific     process”    for    reviewing    DACA
    47   Yet again, this focus ignores the discretion inherent in those criteria.
    48Palinkas also focuses on the USCIS’s announcement that it will create a new service
    center for the processing of DAPA applications, to be staffed by approximately 700 USCIS
    employees and 300 federal contractors. But the fact that so many agents are necessary to
    assess DAPA applications is inconsistent with the notion that the review will be conducted
    in a mechanical, pro forma manner.
    111
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    applications: “Once a case arrives at a Service Center, a specially trained
    USCIS adjudicator is assigned to determine whether the requestor satisfies
    the DACA guidelines and ultimately determine whether a request should be
    approved or denied.”49 Adjudicators “evaluate the evidence each requestor
    submits in conjunction with the relevant DACA guidelines” and “assess the
    appropriate weight to accord such evidence.”50                Citing various examples,
    Neufeld explains that “[e]ven if it is determined that a requestor has satisfied
    the threshold DACA guidelines, USCIS may exercise discretion to deny a
    request where other factors make the grant of deferred action inappropriate.”51
    As a part of their review, adjudicators can investigate the facts and evidence
    supporting the application “by contacting educational institutions, other
    government agencies, employers, or other entities.” Moreover, although the
    Palinkas Declaration accurately states that adjudicators at USCIS service
    centers do not have the capability to interview applicants, the Neufeld
    Declaration clarifies that service center adjudicators “may refer a case for
    interview at a Field Office”—for example, “when the adjudicator determines,
    after careful review of the request and supporting documents, that a request
    is deniable, but potentially curable, with information that can best be received
    through an interview.” Adjudicators may also request that applicants submit
    additional evidence in support of their applications for deferred action; this
    was no rare occurrence, as nearly 200,000 such requests for additional evidence
    were issued by adjudicators. “In addition, all DACA requestors must submit
    Applications are first mailed to USCIS “lockboxes,” where they are reviewed to
    49
    determine whether they should be rejected for administrative reasons.
    50 Neufeld notes, consistent with the discussion above, that “USCIS must . . . exercise
    significant discretion in determining whether” some of the DACA guidelines apply; for
    example, “determining whether a requestor ‘poses a threat to national security or public
    safety’ necessarily involves the exercise of the agency’s discretion.”
    51   Such discretionary denials are generally reviewed at USCIS headquarters.
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    to background checks, and requests are denied if these background checks
    show that deferred action would be inappropriate.”
    Placing these declarations side-by-side, the detailed Neufeld Declaration
    does not simply rebut the conclusory assertions contained in the Palinkas
    Declaration—it provides undisputed context for how USCIS service centers
    actually work and how DACA application decisions are made. Or at the very
    least, as the majority concedes, the two in tandem create “conflicting evidence
    on the degree to which DACA allowed for discretion.” Majority Op. at 49. Yet
    the district court concluded that the Neufeld Declaration did not provide “the
    level of detail that the Court requested.”52 Dist. Ct. 
    Op., 86 F. Supp. 3d at 609
    .
    It is difficult to imagine what level of detail would have satisfied the district
    court. At a minimum, as recognized by Judge Higginson in his dissent to the
    denial of the stay pending appeal, the Neufeld Declaration created a factual
    dispute warranting an evidentiary hearing.53 See 
    Texas, 787 F.3d at 781
    –82
    (Higginson, J., dissenting) (citing authorities); see also Landmark Land Co. v.
    Office of Thrift Supervision, 
    990 F.2d 807
    , 812 (5th Cir. 1993) (“The record
    reveals several disputes of material fact that the district court must necessarily
    resolve in deciding whether to issue the injunction. An evidentiary hearing
    thus is in order upon remand.”); Marshall Durbin Farms, Inc. v. Nat’l Farmers
    Org., Inc., 
    446 F.2d 353
    , 356 n.4 (5th Cir. 1971) (“[W]here so very much turns
    upon an accurate presentation of numerous facts . . . the propriety of
    proceeding upon affidavits becomes the most questionable.”); Cobell v. Norton,
    
    391 F.3d 251
    , 261 (D.C. Cir. 2004) (“Particularly when a court must make
    52The district court did not, however, make an express finding that it deemed the
    Palinkas Declaration more credible than the Neufeld Declaration.
    53Even Plaintiffs noted, after DHS submitted the Neufeld Declaration, that “if the
    Court decides that the Defendants’ new declarations create a material fact dispute of material
    consequence to the motion . . . , the correct step would be to hold a second hearing.”
    113
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    credibility determinations to resolve key factual disputes in favor of the moving
    party, it is an abuse of discretion for the court to settle the question on the basis
    of documents alone, without an evidentiary hearing.” (emphasis added)). The
    district court’s failure to hold an evidentiary hearing further undermines faith
    in its factual conclusions.
    The district court also looked to the operating procedures governing the
    implementation of DACA, noting that they “contain[] nearly 150 pages of
    specific instructions for granting or denying deferred action” and involve the
    use of standardized forms for recording denials—a fact the majority mentions.
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 669
    (footnote omitted). But no such operating
    procedures for the implementation of DAPA appear in the record—a fact the
    majority does not mention. As noted above, the USCIS is currently “in the
    process of determining the procedures for reviewing requests under DAPA.” In
    any event, even “specific and detailed requirements” may qualify as a “‘general’
    statement of policy.” Guardian Fed. Sav. & Loan 
    Ass’n, 589 F.2d at 667
    . And
    the “purpose” of a statement of policy is to “channel discretion” of agency
    decision makers; such channeling does not trigger the requirements of notice-
    and-comment unless it is “so restrictive . . . that it effectively removes most, if
    not all, of the [agency]’s discretion.” Prof’ls & 
    Patients, 56 F.3d at 600
    . As for
    the use of standardized forms to record denials, what matters is not whether
    DAPA decisions are memorialized in a mechanical fashion, but whether they
    are made in such a fashion. For the many reasons discussed above, the district
    court had no legitimate basis for concluding that they will be.
    Finally, the district court’s lengthy discussion of an “abdication theory”
    of standing—a theory for which Plaintiffs have not even expressly advocated—
    114
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    provides context for the district court’s conclusions as to pretext.54                       In
    determining that the DAPA Memorandum constituted an “abdication” of
    DHS’s duties, the district court asserted (repeatedly) that it “cannot be
    disputed” that “the Government has abandoned its duty to enforce the law.”
    Dist. Ct. 
    Op., 86 F. Supp. 3d at 638
    . The district court deemed it “evident that
    the Government has determined that it will not enforce the law as it applies to
    over 40% of the illegal alien population that qualify for DAPA.”55 
    Id. at 639
    (emphasis added). Such blanket assertions—made without discussing any of
    the evidence set out above—assume a lack of discretion in the review of DAPA
    applications. This assumption—which the district court apparently required
    DHS to rebut—infects the opinion below, yet has no evidentiary basis.
    The majority accepts the district court’s factual conclusions almost carte
    blanche. But clear error review is not a rubber stamp, and the litany of errors
    committed by the district court become readily apparent from a review of the
    54 It appears that no court in the country has accepted this radical theory of standing.
    Indeed, the district court admitted that it had “not found a case where the plaintiff’s standing
    was supported solely on this basis.” Dist. Ct. 
    Op., 86 F. Supp. 3d at 643
    n.48. The majority’s
    broad concept of state standing based on harm to “quasi-sovereign interests” is strikingly
    similar to this theory of standing. See Majority Op. at 14 (“When the states joined the union,
    they surrendered some of their sovereign prerogatives over immigration.”).
    55 In addition, the district court stated: (1) “DHS has clearly announced that it has
    decided not to enforce the immigration laws as they apply to approximately 4.3 million
    individuals”; (2) “Secretary Johnson announced that the DHS will not enforce the
    immigration laws as to over four million illegal aliens eligible for DAPA, despite the fact that
    they are otherwise deportable”; (3) “As demonstrated by DACA and DAPA . . . , the
    Government has decided that it will not enforce these immigration laws as they apply to well
    over five million people”; (4) “The DHS unilaterally established the parameters for DAPA and
    determined that it would not enforce the immigration laws as they apply to millions of
    individuals”; and (5) “the DHS does not seek compliance with the federal law in any form,
    but instead establishes a pathway for non-compliance and completely abandons entire
    sections of this country’s immigration law.” 
    Id. at 637
    n.45, 638–43. The district court also
    characterized DAPA as an “announced policy of non-enforcement.” 
    Id. at 637
    n.45. Although
    these quotations from the district court’s opinion focus on what it perceives to be the failures
    of DHS to enforce the immigration laws, at other places in that opinion, the district court
    identifies the decades-long failure of Congress to fund what the district court would consider
    adequate enforcement.
    115
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    record. The record before us, when read properly, shows that DAPA is merely
    a general statement of policy. As such, it is exempt from the notice-and-
    comment requirements of 5 U.S.C. § 553.
    V.     APA Substantive Claim
    The majority’s conclusion that the states are substantially likely to
    succeed on their APA procedural claim should presumably be enough to affirm
    the decision below. Yet, for reasons altogether unclear, the majority stretches
    beyond the judgment of the district court and concludes that DAPA and a long,
    preexisting regulation (8 C.F.R. § 274a.12(c)(14)), as applied to DAPA, are
    substantive APA violations. See Majority Op. at 54–66. Prudence and judicial
    economy warrant against going this far, and I would not reach this issue on
    the record before us. For one, “the district court enjoined DAPA solely on the
    basis of the procedural APA claim.”             
    Id. at 5
    4.     It did not evaluate the
    substantive APA claim at issue. See Dist. Ct. 
    Op., 86 F. Supp. 3d at 677
    (“[T]he
    Court is specifically not addressing Plaintiffs’ likelihood of success on their
    substantive APA claim.”). In fact, the district court eschewed determination of
    this issue and Plaintiffs’ constitutional claim “until there [could be] further
    development of the record.” Id.56
    On appeal, the parties offered only sparse arguments on the substantive
    APA claim. The parties filed briefs totaling 203 pages, of which ten pages
    addressed the substantive APA claim.57            This hardly seems to be enough to
    help us answer a complicated question of statutory interpretation and
    administrative law. I would not address the substantive APA claim in light of
    this limited record while cognizant of the principle that “[c]ases are to be
    56There might not be much left in the way of factual development of the record,
    see Majority Op. at 54 n.158, but there is much left wanting in the way of legal development.
    57Appellees’ Br. 47–50; Appellants’ Reply Br. 21–23; Appellants’ Suppl. Br. 27–29;
    Appellees’ Suppl. Br. 15–17.
    116
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    decided on the narrowest legal grounds available.”                 Korioth v. Briscoe,
    
    523 F.2d 1271
    , 1275 (5th Cir. 1975).
    That said, were I to reach the substantive APA claim I would find the
    majority’s conclusion unpersuasive on the limited record before us.                 The
    argument that DAPA is a substantive APA violation, as I read it, appears to
    be the following: (1) DAPA is “manifestly contrary,” Majority Op. at 66, to the
    text of the INA and deserves no deference partly because Congress would not
    assign it such a “decision[] of vast ‘economic and political significance,’” 
    id. at 6
    2 (citation omitted); and (2) even if DHS deserved deference, DAPA is not a
    reasonable interpretation of the INA.
    Questions of how agencies construe their governing statutes fall under
    the two-step inquiry announced in Chevron, U.S.A., Inc. v. Natural Resources
    Defense Council, Inc., 
    467 U.S. 837
    (1984). It bears reiterating this framework
    as I believe the majority misapplies it and its associated precedents. At step
    one of Chevron, courts are to look at “whether Congress has directly spoken to
    the precise question at issue.” 
    Id. at 842.
    If Congress has directly spoken, then
    the court “must give effect to [its] unambiguously expressed intent.” 
    Id. at 843.
    But “if the statute is silent or ambiguous,” then at step two, a court is to defer
    to an agency’s interpretation of a statute so long as it is “reasonable.”
    
    Id. at 843–44.
          The majority first states that DAPA fails Chevron step one because
    Congress    has     directly   addressed    the    issue      of     deferred    action.
    Majority Op. at 55–56.     To bolster its conclusion, the majority points to
    provisions of the INA that delineate which aliens can receive lawful permanent
    resident (LPR) status, can be eligible for deferred action, and can receive LPR
    status by having a citizen family member. 
    Id. at 5
    5–57. These provisions are,
    indeed, “specific and detailed,” 
    id. at 5
    5, but none of them precisely prohibits
    or addresses the kind of deferred action provided for under DAPA.                   The
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    question under step one is whether the language of a statute is “precisely
    directed to the question,” not whether “parsing of general terms in the text of
    the statute will reveal an actual intent of Congress.” 
    Chevron, 467 U.S. at 861
    –
    62.    Most of the provisions identified by the majority are directed at the
    requirements for legal status, not the lawful presence permitted by DAPA. And
    even the majority acknowledges the two are not the same.                 See Majority Op.
    at 57 (“LPR status is more substantial than is lawful presence.”). DAPA does
    not purport to create “a lawful immigration classification.” 
    Id. at 5
    6.
    It is true that Congress has specified certain categories of aliens that are
    eligible for deferred action. See 
    id. at 5
    6. This line of argument follows from
    the legal maxim expressio unius est exclusio alterius (“the expression of one is
    the exclusion of others”) suggesting that because DAPA was not specified by
    Congress, it is contrary to the INA. But this argument is nonetheless incorrect.
    The expressio unius “canon has little force in the administrative setting.” Tex.
    Rural Legal Aid, Inc. v. Legal Servs. Corp., 
    940 F.2d 685
    , 694 (D.C. Cir. 1991).
    And the inquiry at step one is “whether Congress has directly spoken to the
    precise question at issue,” not whether it legislated in the general area or
    around the periphery. 
    Chevron, 467 U.S. at 842
    (emphasis added). Congress
    has never prohibited or limited ad hoc deferred action, which is no different
    than DAPA other than scale.58 In fact, each time Congress spoke to this
    general issue, it did so incidentally and as part of larger statutes not concerned
    58The majority makes much of the scope of DAPA in concluding that it violates the
    APA. See Majority Op. at 56, 59. Yet the conclusions regarding DAPA’s legality are similarly
    applicable to ad hoc deferred action. Ad hoc deferred action triggers the same eligibility for
    benefits and Congress has not directly mentioned it by statute. It should follow then that ad
    hoc deferred action is also not authorized by the INA and is a substantive APA violation. But
    this cannot be the case for the reasons mentioned below. Despite the majority’s emphasis on
    the scale of DAPA, its size plays no role in whether or not it is authorized by statute. I am
    aware of no principle that makes scale relevant in this analysis, and the majority does not
    cite any authority otherwise. The question of whether an agency has violated its governing
    statute does not change if its actions affect one person or “4.3 million” persons. 
    Id. at 5
    6.
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    with deferred action. See, e.g., USA PATRIOT ACT of 2001, Pub L. No. 107-
    56, § 423(b), 115 Stat. 272, 361 (discussing deferred action for family members
    of LPRs killed by terrorism within a far larger statute aimed primarily at
    combatting terrorism).        And the language regarding deferred action was
    worded in permissive terms, not prohibitive terms.                 See, e.g., 8 U.S.C. §
    1154(a)(1)(D)(i)(II) (stating that a qualifying “is eligible for deferred action and
    work authorization”). More importantly, in enacting these provisos, Congress
    was legislating against a backdrop of longstanding practice of federal
    immigration officials exercising ad hoc deferred action. By the time Congress
    specified categories of aliens eligible for deferred action, immigration officials
    were already “engaging in a regular practice . . . of exercising [deferred action]
    for humanitarian reasons or simply for its own convenience.” 
    Reno, 525 U.S. at 484
    .59 Yet Congress did nothing to upset this practice. The provisions cited
    by the majority, if anything, highlight Congress’s continued acceptance of
    flexible and discretionary deferred action.60 Denying DHS’s ability to grant
    59 The Court in Reno noted that “[p]rior to 1997, deferred-action decisions were
    governed by internal INS guidelines which considered [a variety of factors].” 
    Reno, 525 U.S. at 484
    n. 8. Although the guidelines were rescinded, the Court also observed that “there
    [was] no indication that the INS has ceased making this sort of determination on a case-by-
    case basis.” 
    Id. 60 The
    Office of Legal Counsel, in its evaluation of DAPA, noted that Congress had
    given its “implicit approval” to deferred action over the years. Office of Legal Counsel, 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 30–31 (2014),
    available                                                                                  at
    http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-
    auth-prioritize-removal.pdf.
    119
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    No. 15-40238
    deferred action on a “class-wide basis,” Majority Op. at 32, as the majority does,
    severely constrains the agency.61
    The majority makes a similar mistake with respect to the work
    authorization regulation, 8 C.F.R. § 274a.12(c)(14). The majority holds that
    this regulation as “to any class of illegal aliens whom DHS declines to remove–
    is beyond the scope of what the INA can reasonably be interpreted to
    authorize.” Majority Op. at 40. It bases its conclusion on provisions of the INA
    that specify classes of aliens eligible and ineligible for work authorization and
    scattered statements from past cases supposedly stating that Congress
    restricted immigration to preserve jobs from American workers. Yet, much
    like with deferred action, Congress has never directly spoken to the question
    at issue and, if anything, has indirectly approved of it. In one form or another,
    8 C.F.R. § 274a.12(c)(14) has been on the books since 1981. It follows from a
    grant of discretion to the Secretary to establish work authorizations for aliens,
    see 8 U.S.C. § 1324a(h)(3), and it predates the INA provisions the majority
    cites. See Perales v. Casillas, 
    903 F.2d 1043
    , 1048 (5th Cir. 1990) (noting that
    up to that point there was “nothing in the [INA] [that] expressly provid[ed] for
    the grant of employment authorization”). Had Congress wanted to negate this
    regulation, it presumably would have done so expressly, but by specifying the
    categories of aliens eligible for work authorization, Congress signaled its
    implicit approval of this longstanding regulation. Furthermore, no court, until
    today, has ever cast doubt on this regulation. Our own circuit in Perales found
    no problems with 8 C.F.R. § 274a.12(c)(14) in concluding that a challenge to
    61 The majority’s ruling that class-wide deferred action violates the INA is potentially
    devastating. The definition of a class is expansive: “A group of people, things, qualities, or
    activities that have common characteristics or attributes.” Class, Black’s Law Dictionary
    (10th ed. 2014). I suspect that DHS frequently grants deferred action to two or more aliens
    with common characteristics.
    120
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    No. 15-40238
    employment authorization denials was non-justiciable. Id.62 The majority’s
    snapshot of Supreme Court opinions discussing the aims of the immigration
    laws does not speak to this issue and is misleading. Those opinions noted that
    the immigration laws regarding employment authorization were also
    concerned with creating an “extensive ‘employment verification system’ . . .
    designed to deny employment to aliens who (a) are not lawfully present in the
    United States, or (b) are not lawfully authorized to work in the United States.”
    Hoffman Plastic Compounds, Inc. v. NLRB, 
    535 U.S. 137
    , 147 (2002) (citing 8
    U.S.C. § 1324a) (emphasis added). DAPA and 8 C.F.R. § 274a.12(c)(14) further
    both these aims and also promote the “[s]elf-sufficiency” of aliens by giving
    them work authorization and making them less reliant on public benefits. See
    8 U.S.C. § 1601(1) (“Self-sufficiency has been a basic principle of United States
    immigration law since this country’s earliest immigration statutes.”).
    The majority next holds that DAPA, fails Chevron step one because the
    INA’s broad grants of authority “cannot reasonably be construed as assigning
    [DHS] ‘decisions of vast economic and political significance,’ such as DAPA.”
    Majority Op. at 61–62 (footnote omitted).              To the contrary, immigration
    decisions often have substantial economic and political significance.                     In
    Arizona, the Court noted that “discretionary decisions” made in the
    enforcement of immigration law “involve policy choices that bear on this
    Nation’s international 
    relations.” 132 S. Ct. at 2499
    . “Removal decisions,” it
    has been observed, “‘may implicate our relations with foreign powers’ and
    require consideration of ‘changing political and economic circumstances.’”
    Jama v. Immigration & Customs Enf’t, 
    543 U.S. 335
    , 348 (2005) (quoting
    62If 8 C.F.R. § 274a.12(c)(14) were contrary to the INA, then presumably the challenge
    in Perales would have been justiciable since an agency’s “abdication of its statutory
    responsibilities” is sufficient to overcome the presumption that agency inaction is
    unreviewable. 
    Heckler, 470 U.S. at 833
    n.4.
    121
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    No. 15-40238
    Matthews v. Diaz, 
    426 U.S. 67
    , 81 (1976)). And deferred action—whether ad
    hoc or through DAPA—is not an effort by DHS to “hide elephants in
    mouseholes,” Whitman v. Am. Trucking Ass’ns, Inc., 
    531 U.S. 457
    , 468 (2001),
    but rather “[a] principal feature of the removal system,” 
    Arizona, 132 S. Ct. at 2499
    .
    The majority’s reliance on King v. Burwell, 
    135 S. Ct. 2480
    (2015), for its
    conclusion is misplaced. The Court in King held that it was unlikely Congress
    delegated a key reform of the ACA to the IRS—an agency not charged with
    implementing the ACA and with “no expertise in crafting health insurance
    policy.” 
    Id. at 2
    489. By contrast, DHS is tasked with enforcement of the
    immigration laws, see, e.g., 6 U.S.C. § 202, and its substantial expertise in this
    area has been noted time and time again. See, e.g., 
    Arizona, 132 S. Ct. at 2506
    (“[T]he removal process is entrusted to the discretion of the Federal
    Government.”).
    Lastly, the majority concludes that “[e]ven with ‘special deference’ to the
    Secretary,”    DAPA     is   an   unreasonable    interpretation   of   the   INA.
    Majority Op. at 62–63 (footnote omitted).        Reasonableness at step two of
    Chevron requires only a “minimum level of reasonability,” Tex. Office of Pub.
    Util. 
    Counsel, 183 F.3d at 420
    , and will be found so long as an agency’s
    interpretation is “not patently inconsistent with the statutory scheme,” Am.
    Airlines, Inc. v. Dep't of Transp., 
    202 F.3d 788
    , 813 (5th Cir. 2000) (citation
    omitted). It is hard to see how DAPA is unreasonable on the record before us.
    DAPA does not negate or conflict with any provision of the INA. See 
    Whitman, 531 U.S. at 484
    . DHS has repeatedly asserted its right to engage in deferred
    action. Cf. FDA v. Brown & Williamson Tobacco Corp., 
    529 U.S. 120
    , 146
    (2000) (concluding an agency was not entitled to deference where it previously
    disavowed its enforcement authority). And DAPA appears to further DHS’s
    122
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    No. 15-40238
    mission of “[e]stablishing national immigration enforcement policies and
    priorities.” 6 U.S.C. § 202(5).
    Indeed, if DAPA were unreasonable under the INA, then it follows that
    ad hoc grants of deferred action are unreasonable as well—something the
    majority declines to reach. See Majority Op. at 66 n.202. But, as previously
    mentioned, there is no difference between the two other than scale, and ad hoc
    deferred action has been repeatedly acknowledged by Congress and the courts
    as a key feature of immigration enforcement. See 
    Reno, 525 U.S. at 483
    –84.
    After all, agencies are “far better equipped than the courts to deal with the
    many variables involved in the proper ordering of [their] priorities,” 
    Heckler, 470 U.S. at 831
    –32, and “[t]he responsibilities for assessing the wisdom of such
    policy choices . . . are not judicial ones,” 
    Chevron, 467 U.S. at 866
    . From the
    limited record before us, I would conclude that the DAPA Memorandum is not
    a substantive APA violation.
    VI.   Conclusion
    There can be little doubt that Congress’s choices as to the level of funding
    for immigration enforcement have left DHS with difficult prioritization
    decisions.    But those decisions, which are embodied in the DAPA
    Memorandum, have been delegated to the Secretary by Congress. Because
    federal courts should not inject themselves into such matters of prosecutorial
    discretion, I would dismiss this case as non-justiciable.
    Furthermore, the evidence in the record (the importance of which should
    not be overlooked) makes clear that the injunction cannot stand.                  A
    determination of “pretext” on the part of DHS must have a basis in concrete
    evidence. Of course, as appellate judges, we may not substitute our own view
    of the facts for that of the district court. But we must also embrace our duty
    to correct clear errors of fact—that is, to ensure that factual determinations
    are based not on conjecture, intuition, or preconception, but on evidence. Based
    123
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    No. 15-40238
    on the record as it currently stands, the district court’s conclusion that DAPA
    applications will not be reviewed on a discretionary, case-by-case basis cannot
    withstand even the most deferential scrutiny. Today’s opinion preserves this
    error and, by reaching the substantive APA claim, propounds its own. I have
    a firm and definite conviction that a mistake has been made. That mistake
    has been exacerbated by the extended delay that has occurred in deciding this
    “expedited” appeal. There is no justification for that delay.
    I dissent.
    124
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    APPENDIX A
    Secretary
    U.S. Department of Homeland Security
    Washington, DC 20528
    Homeland
    Security
    November 20, 2014
    MEMORANDUM FOR: 	 Le6n Rodriguez
    Director
    U.S. Citizenship and Immigration Services
    Thomas S. Winkowski
    Acting Director
    U.S. Immigration and Customs Enforcement
    R. Gil Kerlikowske
    Commissioner
    U.S. Customs and Bor
    FROM:
    Secretary
    SUBJECT: 	                   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
    This memorandum is intended to reflect new policies for the use of deferred
    action. By memorandum dated June 15, 2012, Secretary Napolitano issued guidance
    entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came to
    the United States as Children. The following supplements and amends that guidance.
    The Department of Homeland Security (DHS) and its immigration components are
    responsible for enforcing the Nation' s immigration laws. Due to limited resources, DHS
    and its Components cannot respond to all immigration violations or remove all persons
    illegally in the United States. As is true of virtually every other law enforcement agency,
    DHS must exercise prosecutorial discretion in the enforcement of the law. Secretary
    Napolitano noted two years ago, when she issued her prosecutorial discretion guidance
    regarding children, that "[o]ur Nation's immigration laws must be enforced in a strong
    and sensible manner. They are not designed to be blindly enforced without consideration
    given to the individual circumstances of each case."
    1
    www.dhs.gov
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    Deferred action is a long-standing administrative mechanism dating back decades,
    by which the Secretary of Homeland Security may defer the removal of an undocumented
    immigrant for a period oftime. 1 A form of administrative relief similar to deferred
    action, known then as "indefinite voluntary departure," was originally authorized by the
    Reagan and Bush Administrations to defer the deportations of an estimated 1.5 million
    undocumented spouses and minor children who did not qualify for legalization under the
    Immigration Reform and Control Act of 1986. Known as the "Family Fairness" program,
    the policy was specifically implemented to promote the humane enforcement of the law
    and ensure family unity.
    Deferred action is a form of prosecutorial discretion by which the Secretary
    deprioritizes an individual's case for humanitarian reasons, administrative convenience,
    or in the interest of the Department's overall enforcement mission. As an act of
    prosecutorial discretion, deferred action is legally available so long as it is granted on a
    case-by-case basis, and it may be terminated at any time at the agency's discretion.
    Deferred action does not confer any form of legal status in this country, much less
    citizenship; it simply means that, for a specified period of time, an individual is permitted
    to be lawfully present in the United States. Nor can deferred action itself lead to a green
    card. Although deferred action is not expressly conferred by statute, the practice is
    referenced and therefore endorsed by implication in several federal statutes. 2
    Historically, deferred action has been used on behalf of particular individuals, and
    on a case-by-case basis, for classes of unlawfully present individuals, such as the spouses
    and minor children of certain legalized immigrants, widows of U.S. citizens, or victims of
    trafficking and domestic violence. 3 Most recently, beginning in 2012, Secretary
    Napolitano issued guidance for case-by-case deferred action with respect to those who
    came to the United States as children, commonly referred to as "DACA."
    1
    Deferred action, in one form or another, dates back to at least the 1960s. "Deferred action" per se dates back at
    least as far as 1975. See, Immigration and Naturalization Service, Operation Instructions § 103.l (a)(l)(ii) (1975).
    2
    INA§ 204(a)(l)(D)(i)(II), (IV) (Violence Against Women Act (VA WA) self-petitioners not in removal proceedings
    are "eligible for deferred action and employment authorization "); INA§ 237(d)(2) (DHS may grant stay ofremoval
    to applicants for Tor U visas but that denial of a stay request "shall not preclude the alien from applying for . . .
    deferred action"); REAL ID Act of 2005 § 202(c)(2)(B)(viii), Pub. L. 109-13 (requiring states to examine
    documentary evidence oflawfal status for driver 's license eligibility purposes, including "approved deferred action
    status"); National Defense Authorization Act for Fiscal Year 2004 § 1703(c) (d) Pub. L. 108-136 (spouse, parent or
    child ofcertain US. citizen who died as a result ofhonorable service may self-petition for permanent residence and
    "shall be eligible for deferred action, advance parole, and work authorization ").
    3
    In August 2001 , the former-Immigration and Naturalization Service issued guidance providing deferred action to
    individuals who were eligible for the recently created U and T visas. Two years later, USCJS issued subsequent
    guidance, instructing its officers to use existing mechanisms like deferred action for certain U visa applicants facing
    potential removal. More recently, in June 2009, USCIS issued a memorandum providing deferred action to certain
    surviving spouses of deceased U.S. citizens and their children while Congress considered legislation to allow these
    individuals to qualify for permanent residence status.
    2
    Case: 15-40238       Document: 00513264640        Page: 127      Date Filed: 11/09/2015
    By this memorandum, I am now expanding certain parameters of DACA and
    issuing guidance for case-by-case use of deferred action for those adults who have been
    in this country since January 1, 2010, are the parents of U.S. citizens or lawful
    permanent residents, and who are otherwise not enforcement priorities, as set forth in the
    November 20, 2014 Policies for the Apprehension, Detention and Removal of
    Undocumented Immigrants Memorandum.
    The reality is that most individuals in the categories set forth below are
    hard-working people who have become integrated members of American society.
    Provided they do not commit serious crimes or otherwise become enforcement priorities,
    these people are extremely unlikely to be deported given this Department's limited
    enforcement resources-which must continue to be focused on those who represent
    threats to national security, public safety, and border security. Case-by-case exercises of
    deferred action for children and long-standing members of American society who are not
    enforcement priorities are in this Nation's security and economic interests and make
    common sense, because they encourage these people to come out of the shadows, submit
    to background checks, pay fees, apply for work authorization (which by separate
    authority I may grant), and be counted.
    A.     Expanding DACA
    DACA provides that those who were under the age of 31 on June 15, 2012, who
    entered the United States before June 15, 2007 (5 years prior) as children under the age of
    16, and who meet specific educational and public safety criteria, are eligible for deferred
    action on a case-by-case basis. The initial DACA announcement of June 15, 20 12
    provided deferred action for a period of two years. On June 5, 2014, U.S. Citizenship
    and Immigration Services (USCIS) announced that DACA recipients could request to
    renew their deferred action for an additional two years.
    In order to further effectuate this program, I hereby direct USCIS to expand
    DACA as follows:
    Remove the age cap. DACA will apply to all otherwise eligible immigrants who
    entered the United States by the requisite adjusted entry date before the age of sixteen
    (16), regardless of how old they were in June 2012 or are today. The current age
    restriction excludes those who were older than 31 on the date of announcement (i.e.,
    those who were born before June 15, 1981 ). That restriction will no longer apply.
    Extend DACA renewal and work authorization to three-years. The period for
    which DACA and the accompanying employment authorization is granted will be
    extended to three-year increments, rather than the current two-year increments. This
    change shall apply to all first-time applications as well as all applications for renewal
    effective November 24, 2014 . Beginning on that date, USCIS should issue all work
    3
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    authorization documents valid for three years, including to those individuals who have
    applied and are awaiting two-year work authorization documents based on the renewal of
    their DACA grants. USCIS should also consider means to extend those two-year
    renewals already issued to three years.
    Adjust the date-of-entry requirement. In order to align the DACA program
    more closely with the other deferred action authorization outlined below, the eligibility
    cut-off date by which a DACA applicant must have been in the United States should be
    adjusted from June 15, 2007 to January 1, 2010.
    USCIS should begin accepting applications under the new criteria from applicants
    no later than ninety (90) days from the date of this announcement.
    B.     Expanding Deferred Action
    I hereby direct USCIS to establish a process, similar to DACA, for exercising
    prosecutorial discretion through the use of deferred action, on a case-by-case basis, to
    those individuals who:
    • 	 have, on the date of this memorandum, a son or daughter who is a U.S.
    citizen or lawful permanent resident;
    • 	 have continuously resided in the United States since before
    January 1, 2010;
    • 	 are physically present in the United States on the date of this
    memorandum, and at the time of making a request for consideration of
    deferred action with USCIS;
    • 	 have no lawful status on the date of this memorandum;
    • 	 are not an enforcement priority as reflected in the November 20, 2014
    Policies for the Apprehension, Detention and Removal of
    Undocumented Immigrants Memorandum; and
    • 	 present no other factors that, in the exercise of discretion, makes the
    grant of deferred action inappropriate.
    Applicants must file the requisite applications for deferred action pursuant to the
    new criteria described above. Applicants must also submit biometrics for USCIS to
    conduct background checks similar to the background check that is required for DACA
    applicants. Each person who applies for deferred action pursuant to the criteria above
    shall also be eligible to apply for work authorization for the period of deferred action,
    pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of
    4
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    the Immigration and Nationality Act. 4 Deferred action granted pursuant to the program
    shall be for a period of three years. Applicants will pay the work authorization and
    biometrics fees, which currently amount to $465. There will be no fee waivers and, like
    DACA, very limited fee exemptions.
    USCIS should begin accepting applications from eligible applicants no later than
    one hundred and eighty (180) days after the date of this announcement. As with DACA,
    the above criteria are to be considered for all individuals encountered by U.S.
    Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection
    (CBP), or USCIS, whether or not the individual is already in removal proceedings or
    subject to a final order of removal. Specifically:
    • 	 ICE and CBP are instructed to immediately begin identifying persons in their
    custody, as well as newly encountered individuals, who meet the above criteria
    and may thus be eligible for deferred action to prevent the further expenditure of
    enforcement resources with regard to these individuals.
    • 	 ICE is further instructed to review pending removal cases, and seek administrative
    closure or termination of the cases of individuals identified who meet the above
    criteria, and to refer such individuals to USCIS for case-by-case
    determinations. ICE should also establish a process to allow individuals in
    removal proceedings to identify themselves as candidates for deferred action.
    • 	 USCIS is instructed to implement this memorandum consistent with its existing
    guidance regarding the issuance of notices to appear. The USCIS process shall
    also be available to individuals subject to final orders of removal who otherwise
    meet the above criteria.
    Under any of the proposals outlined above, immigration officers will be provided
    with specific eligibility criteria for deferred action, but the ultimate judgment as to
    whether an immigrant is granted deferred action will be determined on a case-by-case
    basis.
    This memorandum confers no substantive right, immigration status or pathway to
    citizenship. Only an Act of Congress can confer these rights. It remains within the
    authority of the Executive Branch, however, to set forth policy for the exercise of
    prosecutorial discretion and deferred action within the framework of existing law. This
    memorandum is an exercise of that authority.
    4
    INA § 274A(h)(3), 8 U.S.C. § 1324a(h)(3) ("As used in this section, the term ' unauthorized alien' means, with
    respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien
    lawfully admitted for permanent residence, or (8) authorized to be so employed by this chapter or by
    the[Secretary] ."); 8 C.F.R. § 274a. J 2 (regulations establishing classes of aliens eligible for work authorization).
    5
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    APPENDIX B
    Secretary
    U.S. Department of Homeland Security
    Washington, DC 20528
    Homeland
    Security
    November 20, 2014
    MEMORANDUM FOR:                Thomas S. Winkowski
    Acting Director
    U.S. Immigration and Customs Enforcement
    R. Gil Kerlikowske
    Commissioner
    U.S. Customs and Border Protection
    Leon Rodriguez
    Director
    U.S. Citizenship and Immigration Services
    Alan D. Bersin
    Acting Assistant Secretary for Policy
    FROM:                          Jeh Charles Johnson
    Secretary
    SUBJECT:                       Policies for the Apprehension, Deten tion and
    Removal of Undocumented Immigrants
    This memorandum reflects new policies for the apprehension, detention, and
    removal of aliens in this country. This memorandum should be considered
    Department-wide guidance, applicable to the activities of U.S. Immigration and Customs
    Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship
    and Immigration Services (USCIS). This memorandum should inform enforcement and
    removal activity, detention decisions, budget requests and execution, and strategic
    planning.
    In general, our enforcement and removal policies should continue to prioritize
    threats to national security, public safety, and border security. The intent of this new
    policy is to provide clearer and more effective guidance in the pursu it of those priorities.
    To promote public confidence in our enforcement activities, I am also directing herein
    greater transparenc y in the annual reporting of our removal statistics, to include data that
    tracks the priorities outlined below.
    www.dhs..gov
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    The Department of Homeland Security (DHS) and its immigration components-
    CBP, ICE, and USCIS-are responsible for enforcing the nation's immigration laws.
    Due to limited resources, DHS and its Components cannot respond to all immigration
    violations or remove all persons illegally in the United States. As is true of virtually
    every other law enforcement agency, DHS must exercise prosecutorial discretion in the
    enforcement of the law. And, in the exercise of that discretion, DHS can and should
    develop smart enforcement priorities, and ensure that use of its limited resources is
    devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been,
    and will continue to be national security, border security, and public safety. DHS
    personnel are directed to prioritize the use of enforcement personnel , detention space, and
    removal assets accordingly.
    In the immigration context, prosecutorial discretion should apply not only to the
    decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of
    other discretionary enforcement decisions, including deciding: whom to stop, question ,
    and arrest; whom to detain or release; whether to settle, dismiss, appeal , or join in a
    motion on a case; and whether to grant deferred action, parole, or a stay of removal
    instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion
    at any stage of an enforcement proceeding, it is generally preferable to exercise such
    discretion as early in the case or proceeding as possible in order to preserve government
    resources that would otherwise be expended in pursuing enforcement and removal of
    higher priority cases. Thus, DHS personnel are expected to exercise discretion and
    pursue these priorities at all stages of the enforcement process-from the earliest
    investigative stage to enforcing final orders of removal-subject to their chains of
    command and to the particular responsibilities and authorities applicable to their specific
    position.
    Except as noted below, the following memoranda are hereby rescinded and
    superseded: John Morton, Civil Immigration Enforcem ent: Priorities for the
    Apprehension , Detention , and Removal of Aliens, March 2, 20 11; John Morton,
    Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of
    the Agency for the Apprehension , Detention and Removal of Aliens , June 17, 20 11; Peter
    Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17,
    2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal,
    State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive
    Operations Program: Priorities, Goals, and Expectations, December 8, 2009.
    2
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    A.      Civil Immigration Enforcement Priorities
    The following shall constitute the Department's civil immigration enforcement
    priorities:
    Priority 1 (threats to national security, border security, and public safety)
    Aliens described in this priority represent the highest priority to which
    enforcement resources should be directed:
    (a) aliens engaged in or suspected of terrorism or espionage, or who
    otherwise pose a danger to national security;
    (b) aliens apprehended at the border or ports of entry while attempting to
    unlawfully enter the United States;
    (c) aliens convicted of an offense for which an element was active
    participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or
    aliens not younger than 16 years of age who intentionally participated in
    an organized criminal gang to further the illegal activity of the gang;
    (d) aliens convicted of an offense classified as a felony in the convicting
    jurisdiction, other than a state or local offense for which an essential
    element was the alien's immigration status; and
    (e) aliens convicted of an "aggravated felony," as that term is defined in
    section 101(a)(43) of the Immigration and Nationality Act at the time of
    the conviction.
    The removal of these aliens must be prioritized unless they qualify for asylum or
    another form of relief under our laws, or unless, in the judgment of an ICE Field Office
    Director, CBP Sector Chief or CBP Director of Field Operations, there are compelling
    and exceptional factors that clearly indicate the alien is not a threat to national security,
    border security, or public safety and should not therefore be an enforcement priority.
    Priority 2 (misdemeanants and new immigration violators)
    Aliens described in this priority , who are also not described in Priority 1, represent
    the second-highest priority for apprehension and removal. Resources should be dedicated
    accordingly to the removal of the following:
    (a) aliens convicted of three or more misdemeanor offenses, other than minor
    traffic offenses or state or local offenses for which an essential element
    3
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    was the alien's immigration status, provided the offenses arise out of
    three separate incidents;
    (b) aliens convicted of a "significant misdemeanor," which for these purposes
    is an offense of domestic violence ;1 sexual abuse or exploitation;
    burglary ; un lawful possession or use of a firearm; drug distribution or
    trafficking; or driving under the influence; or if not an offense listed
    above, one for which the individual was sentenced to time in custody of
    90 days or more (the sentence must involve time to be served in custody,
    and does not include a suspended sentence);
    (c) aliens apprehended anywhere in the United States after unlawfu lly
    entering or re-entering the United States and who cannot establish to the
    satisfaction of an immigration officer that they have been physically
    present in the United States continuously since January 1, 2014 ; and
    (d) aliens who, in the judgmen t of an ICE Field Office Director , USCIS
    District Director, or USCIS Service Center Director, have significantly
    abused the visa or visa waiver programs.
    These aliens should be removed unless they qualify for asylum or anoth er form of
    relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP
    Sector Chief, CBP Director of Field Operations, USCIS District Director, or users
    Service Center Director, there are factors indicating the alien is not a threat to national
    security, border security, or public safety, and should not therefore be an enforcement
    priority.
    Priority 3 (other immigration violations)
    Priority 3 aliens are those who have been issued a final order of removal2 on or
    after January 1, 20 14. Aliens described in this priority, who are not also described in
    Priority 1 or 2, represent the third and lowest priority for apprehension and removal.
    Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens
    should generally be removed unless they qualify for asylum or another form of relief
    under our laws or, unless, in the judgment of an immigration officer, the alien is not a
    threat to the integrity of the immigration system or there are factors suggesting the alien
    should not be an enforcement priority.
    1
    ln eval uating whether the offense is a significant misdemeanor involving ..domestic violence," careful
    consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this
    should be a mitigating factor. See generally, John Morton, Prosecutorial Discretion: Certain Victims, Witnesses,
    and Plaintiffs, June 17, 201 1.
    2
    For present purposes, "final order" is defined as it is in 8 C.F.R. § 124 l.1.
    4
    Case: 15-40238      Document: 00513264640         Page: 134     Date Filed: 11/09/2015
    B.     Apprehension, Deten tion , and Removal of Other Aliens Unlawfully in
    the United States
    Nothing in this memorandum should be construed to prohibit or discourage the
    apprehension, detention, or removal of aliens unlawfully in the United States who are not
    identified as priorities herein. However, resources should be dedicated, to the greatest
    degree possible, to the removal of aliens described in the priorities set forth above,
    commensurate with the level of prioritization identified. Immigration officers and
    attorneys may pursue removal of an alien not identified as a priority herein , provided, in
    the judgment of an ICE Field Office Director, removing such an alien would serve an
    important federal interest.
    C.     Detention
    As a general rule, DHS detention resources should be used to support the
    enforcement pr iorities noted above or for aliens subject to mandatory detention by
    law. Absent extraordinary circumstances or the requirement of mandatory detention,
    field office directors should not expend detention resource s on aliens who are known
    to be suffering from serious physical or mental illness, who are disabled, elderly ,
    pregnant, or nursing, who demonstrate that they are primary caretakers of children
    or an infirm person, or whose detention is otherwise not in the public interest. To
    detain aliens in those categories who are not subject to mandatory detention, DHS
    officers or special agents must obtain approval from the ICE F ield Office Director.
    If an alien falls within the above categories and is subject to mand atory detention,
    field office directors are encouraged to contact their local Office of Chief Counsel
    for guidance.
    D.     Exercising Prosecutorial Discretion
    Section A, above, requires DHS personnel to exercise discretion based on
    individual circumstances. As noted above, aliens in Priority l must be prioritized for
    removal unless they qualify for asylum or other form of relief under our laws, or unl ess,
    in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of
    Field Operations, there are compelling and exceptional factors that clearly indicate the
    alien is not a threat to national security, border security, or public safety and should not
    therefore be an enforcement priority. Likewise, aliens in Priority 2 should be removed
    unless they qualify for asylum or other forms of relief under our laws, or unless, in the
    judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field
    Operation s, USCIS District Director, or USCIS Service Center Director, there are factors
    indicating the alien is not a threat to national security, border security, or public safety
    and should not therefore be an enforcement priority . Similarly, aliens in Priority 3 should
    generally be removed unless they qualify for asylum or another form of relief under our
    laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the
    5
    Case: 15-40238      Document: 00513264640         Page: 135      Date Filed: 11/09/2015
    integrity of the immigration system or there are factors suggesting the alien should not be
    an enforcement priority.
    In making such judgment s, DHS personnel should consider factors such as:
    extenuating circumstances involving the offense of conviction; extended length of time
    since the offense of conviction; length of time in the United States; military service;
    family or community ties in the United States; status as a victim, witness or plaintiff in
    civil or criminal proceedings; or compelling humanit arian factors such as poor health,
    age, pregnancy, a young child, or a seriously ill relative. These factors are not intended
    to be dispositive nor is this list intended to be exhaustive. Decisions should be based on
    the totality of the circumstances.
    E.     Implementation
    The revised guidance shall be effective on January 5, 201 5. Implementing training
    and guidance will be provided to the workforce prior to the effective date. The revised
    guidance in this memorandum applies only to aliens encountered or apprehended on or
    after the effective date, and aliens detained, in removal proceedings, or subject to removal
    orders who have not been removed from the United States as of the effective date.
    Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which
    remain in force and effect to the extent they are not inconsistent with this memorandum.
    F.     Data
    By this memorandum I am directing the Office of Immigration Statistics to create
    the capability to collect, maintain, and report to the Secretary data reflecting the numbers
    of those apprehended, removed, returned, or otherwise repatriat ed by any component of
    DHS and to report that data in accordance with the priorities set forth above. I direct
    CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the
    package of data released by DHS to the public annually.
    G.     No Private Right Statement
    These guidelines and priorities are not intended to, do not, and may not be relied
    upon to create any right or ben efit, substantive or procedural, enforceable at law by any
    party in any administrative, civil, or criminal matter.
    6
    

Document Info

Docket Number: 15-40238

Filed Date: 11/9/2015

Precedential Status: Precedential

Modified Date: 11/10/2015

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