Case: 21-40680 Document: 00516498357 Page: 1 Date Filed: 10/05/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
October 5, 2022
No. 21-40680 Lyle W. Cayce
Clerk

State of Texas; State of Alabama; State of Arkansas;

State of Louisiana; State of Nebraska; State of South
Carolina; State of West Virginia; State of Kansas;
State of Mississippi,

Plaintiffs—Appellees,

versus

United States of America; Alejandro Mayorkas, Secretary,

U.S. Department of Homeland Security; Troy Miller, Acting
Commissioner, U.S. Customs and Border Protection; Tae D. Johnson,
Acting Director of U.S. Immigration and Customs Enforcement; Ur M.
Jaddou, Director of U.S. Citizenship and Immigration Services,

Defendants—Appellants,

Elizabeth Diaz; Jose Magana-Salgado; Karina Ruiz De

Diaz; Jin Park; Denise Romero; Angel Silva; Moses
Kamau Chege; Hyo-Won Jeon; Blanca Gonzalez; Maria
Rocha; Maria Diaz; Elly Marisol Estrada; Darwin
Velasquez; Oscar Alvarez; Luis A. Rafael; Nanci J.
Palacios Godinez; Jung Woo Kim; Carlos Aguilar
Gonzalez; State of New Jersey,

Intervenor Defendants—Appellants.
Case: 21-40680 Document: 00516498357 Page: 2 Date Filed: 10/05/2022

No. 21-40680

Appeal from the United States District Court

for the Southern District of Texas
USDC No. 1:18-CV-68

Before Richman, Chief Judge, and Ho and Engelhardt, Circuit

Judges.
Priscilla Richman, Chief Judge:
In 2012 the Secretary of the Department of Homeland Security
(DHS) announced the Deferred Action for Childhood Arrivals (DACA)
program. The program was set forth in a three-page memorandum (to which
we will refer as the DACA Memorandum or the memorandum). 1 Among
other provisions, the DACA Memorandum directed that removal of certain
aliens who entered the United States unlawfully as children should be
deferred and that these immigrants should receive certain benefits. Eight
states and the Governors of two states, led by Texas, have challenged
DACA’s validity. 2 In ruling on competing motions for summary judgment,
the district court held that the DACA Memorandum violates procedural and
substantive requirements of the Administrative Procedure Act (APA). 3 The
district court vacated the DACA Memorandum and remanded to DHS for
further consideration but temporarily stayed that vacatur as it applies to

1
Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David
Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al. (June 15, 2012) (DACA
Memorandum) (ROA.350-52), https://www.dhs.gov/xlibrary/assets/s1-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
2
The Plaintiffs are the States of Texas, Alabama, Arkansas, Louisiana, Nebraska,
South Carolina, West Virginia, and Kansas, and the Governors of Mississippi and Maine.
ROA.4175 (Amended Complaint).
3
5 U.S.C. § 500 et. seq.; Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Tex.
2021). We cite the district court’s opinion as “Dist. Ct. Op., 549 F. Supp. 3d at —.”

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current DACA recipients. 4 The district court further ruled that DHS may
continue to accept new and renewal DACA applications but enjoined DHS
from approving any new DACA applications. 5 We affirm the district court’s
judgment in part, but remand to the district court rather than DHS in light of
a final rule promulgated by DHS in August 2022. 6
I
The 2012 DACA Memorandum applies to “certain young people who
were brought to this country as children” unlawfully and would otherwise be
removable. 7 The DACA Memorandum provides that an illegal alien qualifies
for relief from removal and specified benefits if that person

• came to the United States under the age of sixteen;

• has continuously resided in the United States for at least five years
preceding the date of the memorandum and was present in the
United States on the date of the memorandum;
• is currently in school, has graduated from high school, has
obtained a general education development certificate, or is an
honorably discharged veteran of the Coast Guard or Armed Forces
of the United States;
• has not been convicted of a felony offense, a significant
misdemeanor offense, multiple misdemeanor offenses, or does not
otherwise pose a threat to national security or public safety;

4
Dist. Ct. Op., 549 F. Supp. 3d at 624.
5
Id.
6
Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152 (Aug. 30, 2022) (to
be codified at 8 C.F.R. pts 106, 236, and 274a).
7
Id.

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• is not above the age of thirty as of the date of the memorandum;

and
• passes a background check. 8
Under these criteria, the district court concluded that about 1.5
million aliens were covered by the DACA Memorandum. 9
The memorandum instructs immigration agencies to “exercise
prosecutorial discretion, on an individual basis, for individuals who meet the
above criteria by deferring action for a period of two years, subject to
renewal . . . .” 10 United States Citizenship and Immigration Services
(USCIS) was directed to “establish a clear and efficient process” to that
end. 11
Those granted deferred action became eligible for other benefits. By
virtue of deferred action, recipients were deemed “lawfully present” under
pre-existing federal regulations and could seek work authorization, and were
eligible for Social Security and Medicare. 12 The memorandum expressly

8
Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David
Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al. (June 15, 2012) (DACA
Memorandum) (ROA.350-52), https://www.dhs.gov/xlibrary/assets/s1-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
9
Texas v. United States, 549 F. Supp. 3d 572, 578 n.10 (S.D. Tex. 2021) (“Estimates
provided to the Court differ in the total number of DACA-eligible individuals. . . . Rather
than relying on extrinsic sources, arguments from counsel, or government statistics that
frequently change, the Court instead will use a midrange number of approximately 1.5
million eligible individuals.”).
10
DACA Memorandum at 2.
11
Id.
12
See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1902 (2020) (explaining
that work authorization for deferred action recipients is “permitted under regulations long
predating DACA’s creation” and that “[p]ursuant to other regulations, deferred action
recipients are considered ‘lawfully present’ for purposes of, and therefore eligible to
receive, Social Security and Medicare benefits”); see also 8 C.F.R. § 274a.12(c)(14) (2022)

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No. 21-40680

stated that “USCIS shall accept applications to determine whether these

individuals qualify for work authorization during this period of deferred
action.” 13
The memorandum contained several disclaimers. “DHS cannot
provide any assurance that relief will be granted in all cases.” 14 The
memorandum says that it “confers no substantive right, immigration status
or pathway to citizenship.” 15 It purports to “set forth policy for the exercise
of discretion within the framework of existing law.” 16
Two years later, in November 2014, DHS issued a memorandum to
expand DACA and institute a related program called Deferred Action for
Parents of Americans and Lawful Permanent Residents (DAPA). 17 The
DACA expansion would have removed the age limit, extended the entry date
from 2007 to 2010, and extended the renewable deferred action period from
two years to three years. 18 Up to 4.3 million parents of United States citizens
or lawful permanent residents would have been eligible under the DAPA
program. 19

(work authorization); 8 C.F.R. § 1.3(a)(4)(vi) (Social Security); 42 C.F.R. § 417.422(h)

(Medicare).
13
DACA Memorandum at 3.
14
Id. at 2.
15
Id. at 3.
16
Id.
17
Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to León
Rodríguez, Dir., U.S. Citizenship & Immigr. Servs., et al. (Nov. 20, 2014) (ROA.354-58),
https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action
_2.pdf.
18
Id. at 3-4.
19
DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1902 (2020).

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Twenty-six states filed suit in the Southern District of Texas to

prevent DAPA’s implementation. 20 The district court entered a nationwide
preliminary injunction. 21 In Texas v. United States (DAPA), 22 this court
affirmed the grant of injunctive relief. 23 We held that DAPA likely violated
procedural APA requirements because it was a substantive rule that required
notice and comment. 24 We also held that DAPA likely violated substantive
APA requirements because it was “manifestly contrary” to the Immigration
and Naturalization Act (INA). 25 The Supreme Court affirmed this court’s
judgment without an opinion by an equally divided vote. 26
After a change in Presidential administrations, the new Attorney
General determined that DACA was likewise unlawful. 27 DHS then issued a
memorandum attempting to rescind DACA. 28 In Department of Homeland
Security v. Regents of the University of California, 29 the Supreme Court held
that DACA’s rescission violated the APA. The Court first determined that
the rescission decision was reviewable. 30 DACA “conferr[ed] affirmative
immigration relief,” granting both forbearance from removal and other

20
Texas v. United States, 86 F. Supp. 3d 591, 604 (S.D. Tex. 2015).
21
Id. at 677-78.
22
809 F.3d 134 (5th Cir. 2015).
23
Id. at 146.
24
Id. at 177-78.
25
Id. at 182 (quoting Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S.
44, 53 (2011)).
26
United States v. Texas, 579 U.S. 547 (2016) (per curiam).
27
DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1903 (2020).
28
ROA.366-71.
29
140 S. Ct. 1891 (2020).
30
Id. at 1907.

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benefits attendant to deferred action: eligibility for work authorization, Social

Security, and Medicare. 31 “Because the DACA program is more than a non-
enforcement policy, its rescission is subject to review under the APA,” the
Court explained. 32
The Court then held that the decision to rescind DACA was arbitrary
and capricious. 33 DHS did not explain why it was terminating “the
forbearance policy at the heart of DACA,” instead of the benefits alone. 34
“[G]iven DHS’s earlier judgment that forbearance is ‘especially justified’
for ‘productive young people’ who were brought here as children and ‘know
only this country as home,’ the DACA Memorandum could not be rescinded
in full ‘without any consideration whatsoever’ of a forbearance-only policy,”
the Court concluded. 35 The rescission was also arbitrary and capricious
because DHS “failed to address whether there was ‘legitimate reliance’ on
the DACA Memorandum.” 36
In May 2018, while litigation over DACA’s rescission was ongoing,
several states filed this lawsuit against the Government challenging DACA’s
implementation in the first instance. 37 A group of twenty-two DACA
recipients and the State of New Jersey intervened as codefendants. 38 The

31
Id. at 1906.
32
Id. at 1907.
33
Id. at 1913.
34
Id. at 1912.
35
Id. (internal citation omitted) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51 (1983)).
36
Id. at 1913 (quoting Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742
(1996)).
37
ROA.135.
38
ROA.15354.

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plaintiff States and Governors, to whom we will hereafter refer as “the

States” for simplicity, requested a preliminary injunction. Although the
district court held that the States would likely succeed on the merits of their
procedural and substantive APA claims, the court declined to issue a
preliminary injunction 39 because of the States’ delay in raising the challenge
and the relative hardship enjoining DACA would cause to the defendants and
the public. 40
After the Supreme Court’s decision in Regents, the States and the
DACA Recipients filed cross-motions for summary judgment. 41 The district
court granted summary judgment in favor of the States. 42 It concluded that
DACA violated the procedural and substantive requirements of the APA. 43
The court held that DACA was procedurally deficient because it failed to
undergo notice and comment. 44 DACA was not a general policy statement
exempt from notice and comment because it involved “significant rights and
obligations” and imposed “fixed criteria.” 45 The district court further held
that DACA was substantively unlawful because it violated the INA and other
immigration statutes. 46 The district court concluded that DACA was “‘in
excess of statutory jurisdiction’ and ‘short of statutory right’ . . . .” because
“Congress’s clear articulation of laws for removal, lawful presence, and work

39
Texas v. United States, 328 F. Supp.3d 662, 743 (S.D. Tex. 2018).
40
Id. at 742.
41
ROA.22370, 23891.
42
Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Tex. 2021).
43
Id. at 603, 621.
44
Id. at 602-03.
45
Id. at 602.
46
Id. at 615-17.

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authorization illustrates a manifest intent to reserve for itself the authority to

determine the framework of the nation’s immigration system.” 47
The district court vacated the DACA Memorandum and remanded
the proceedings to DHS. 48 However, the district court temporarily stayed
the vacatur as to the approximately 600,000 existing DACA recipients. 49
The court’s judgment also permitted DHS to accept new and renewal DACA
applications but enjoined the DHS from approving any new applications and
granting any attendant status. 50 The defendants appealed to this court. 51
The DHS also issued a notice of proposed rulemaking with the stated intent
to “preserve and fortify DHS’s DACA policy” 52 in response to the district
court’s remand.
After we heard oral argument on July 6, 2022, the agency promulgated
a final rule on August 30, 2022 (“Final Rule”). 53 DHS urges us to review the
substantive challenges to the Final Rule, asserting that we have jurisdiction
to do so and that none of the changes in the Final Rule are material. The
States (other than New Jersey) contend that if we do not decide this appeal
until October 31, 2022, or thereafter, we should treat the Final Rule as the

47
Id. at 614.
48
Id. at 624.
49
Id.; see also Count of Active DACA Recipients by Month of Current DACA
Expiration as of June 30, 2021, U.S. Citizenship & Immigr. Servs.,
https://go.usa.gov/xMwtK.
50
Dist. Ct. Op., 549 F. Supp. 3d at 624.
51
ROA.25313, 25317, 25320.
52
Deferred Action for Childhood Arrivals, 86 Fed. Reg. 53,736, 53,773 (proposed
Sept. 28, 2021) (to be codified in scattered sections of 8 C.F.R).
53
Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152 (Aug. 30, 2022) (to
be codified at 8 C.F.R. pts 106, 236, and 274a).

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agency action under consideration because, they assert, the Final Rule is
substantially similar to the 2012 DACA Memorandum. DACA recipients
contend that in light of the Final Rule, this court should remand the case to
the district court to consider that rule in the first instance because “it is far
from clear how the District Court here will address the DACA [Final] Rule”
and this court does not have the administrative record regarding the Final
Rule before it. New Jersey essentially agrees with the DACA recipients.
For the reasons discussed below, we affirm the district court’s
judgment with regard to the procedural and substantive provisions of the
DACA memorandum. Assuming without deciding that we presently have
jurisdiction to review the Final Rule, we decline to do so at this juncture. We
do not have the administrative record before us. We cannot determine
whether there are material differences in that record and the record before
the district court regarding the 2012 DACA Memorandum. The DACA
Memorandum remains in effect until October 31, 2022. To the extent our
determinations about questions of law in the present appeal would also apply
to the Final Rule, those issues of law should be resolved sooner rather than
later to move this case forward as expeditiously as possible. A district court
is in the best position to review the administrative record in the rulemaking
proceeding and determine whether our holdings as to the 2012 DACA
Memorandum fully resolve issues concerning the Final Rule.
The district court’s remand to DHS pending the issuance of a Final
Rule has been rendered unnecessary by supervening events. That portion of
the district court’s judgment is accordingly vacated, and we remand to the
district court for further proceedings that the parties may pursue regarding
the Final Rule. That does not, of course, foreclose remanding to DHS upon
review of the Final Rule in any future proceedings. Today, we consider only
the challenges to the 2012 DACA Memorandum.

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II
We first consider the relief that the States sought in the district court.
Among many other allegations, the States assert in their Amended Complaint
that “[b]ut for the Executive’s implementation of DACA, aliens covered by
that program would not be eligible for lawful presence, and would be
removable under the INA.” 54 They further contend that because of the
unlawful DACA program, aliens covered by it are eligible for work
authorization, lawful-permanent-resident status by obtaining advance parole,
and United States citizenship by obtaining advance parole. 55 The remedy the
States ultimately seek is to “phase out the DACA program within two
years.” 56 They do not seek to “require the Executive to immediately rescind
any existing DACA permits that confer lawful presence or work
authorization.” 57 They assert that though a court would have the power to
immediately rescind all DACA permits that confer lawful presence and work
authorizations, the “Plaintiff States are amenable to an injunction that
prospectively enjoins Defendants in the future from renewing or issuing any
new DACA permits.” 58 Without DACA permits, current and prospective
DACA recipients would be subject to removal under the same conditions and
terms as other similarly situated immigrants who are illegally present in the
United States. Throughout the Amended Complaint and briefing, the States
contend that the special treatment afforded by the DACA Memorandum, not
just the benefits conferred, have encouraged those eligible for DACA to

54
Amended Complaint ¶ 211. ROA.4225.
55
Amended Complaint ¶¶ 212-214. ROA.4225.
56
Amended Complaint ¶ 339. ROA.4244.
57
Amended Complaint ¶ 339. ROA.4244.
58
Amended Complaint ¶ 339. ROA.4244.

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remain in this country. A key component for obtaining relief, the States say,
is that at least some DACA recipients would be motivated to leave the States
if the DACA program is ended. Deferring removal for DACA recipients, that
is, special treatment under the immigration laws governing removal, is an
integral part of the causation of the States’ injuries, according to their
Amended Complaint and briefing. For example, the States assert in the
Appellees’ Brief in our court that “[t]he district court’s injunction redresses
the States’ injuries because many of those aliens would and will return to
their countries of origin without DACA.”
In sum, the States seek an end to the DACA program in its entirety at
some point in the future. They seek to end both forbearance of removal and
the conferral of benefits to existing DACA recipients as existing permits
expire. The States make clear in their filings and briefing that once the
DACA program has ended, former DACA recipients should be removable on
the same basis as any other similarly situated illegal alien.
III
Before considering the merits of the appeals from the district court’s
judgment, we must resolve whether any Plaintiff has standing to assert the
claims at issue. Article III of the Constitution restricts the federal judicial
power to the resolution of “Cases” or “Controversies.” 59 “For there to be
a case or controversy under Article III, the plaintiff must have a ‘personal

59
U.S. Const. art. III, § 2.

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stake’ in the case—in other words, standing.” 60 “Standing is a question of

law that we review de novo.” 61
As the parties invoking federal jurisdiction, the States bear the burden
of establishing standing. 62 To do so, they “must show (i) that [they] suffered
an injury in fact that is concrete, particularized, and actual or imminent;
(ii) that the injury was likely caused by the defendant; and (iii) that the injury
would likely be redressed by judicial relief.” 63 The States must make this
showing “with the manner and degree of evidence required at the successive
stages of the litigation.” 64 At summary judgment, they “can no longer rest
on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence
‘specific facts.’” 65
The presence of one party with standing is sufficient to authorize our
review. 66 Texas is the only state that has attempted to demonstrate standing.
A
Texas contends that it warrants special solicitude in the standing
analysis. “States are not normal litigants for the purposes of invoking federal
jurisdiction” and may be “entitled to special solicitude.” 67 When special

60
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (quoting Raines v.
Byrd, 521 U.S. 811, 819 (1997)).
61
N. Cypress Med. Ctr. Op. Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015)
(quoting Rivera v. Wyeth-Ayerst Labs., 283 F.3d 315, 319 (5th Cir. 2002)).
62
TransUnion, 141 S. Ct. at 2207.
63
Id. at 2203.
64
Id. at 2208 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
65
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 412 (2013) (quoting Lujan, 504 U.S.
at 561).
66
Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006).
67
Massachusetts v. EPA, 549 U.S. 497, 518, 520 (2007).

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solicitude is appropriate, a state can establish standing “without meeting all

the normal standards for redressability and immediacy.” 68 Standing will
exist “if there is some possibility that the requested relief will prompt the
injury-causing party to reconsider the decision that allegedly harmed the
litigant.” 69
Special solicitude has two requirements: (1) the State must have a
procedural right to challenge the action in question, and (2) the challenged
action must affect one of the State’s quasi-sovereign interests. 70 Texas
satisfies the first requirement. As in DAPA, Texas asserts a procedural right
under the APA to challenge agency action. 71 “In enacting the APA, Congress
intended for those ‘suffering legal wrong because of agency action’ to have
judicial recourse, and the states fall well within that definition.” 72 Once
again, now with DACA, Texas “challenges DHS’s affirmative decision to set
guidelines for granting lawful presence to a broad class of illegal aliens.” 73
To satisfy the second requirement, DACA must affect a quasi-
sovereign interest. The leading Supreme Court decision regarding this
concept is Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez. 74 A quasi-
sovereign interest is “a judicial construct that does not lend itself to a simple
or exact definition.” 75 Quasi-sovereign interests are “not sovereign

68
Id. at 517-18 (quoting Lujan, 504 U.S. at 572 n.7).
69
Id. at 518.
70
DAPA, 809 F.3d 134, 151-52 (5th Cir. 2015).
71
See id. at 152.
72
Id. (footnote omitted) (quoting 5 U.S.C. § 702).
73
Id. at 152.
74
458 U.S. 592 (1982).
75
Id. at 601.

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interests, proprietary interests, or private interests pursued by the State as a

nominal party.” 76 Rather, they “consist of a set of interests that the State
has in the well-being of its populace.” 77 These include interests in “the
health and well-being—both physical and economic—of its residents” and
in “not being discriminatorily denied its rightful status in the federal
system.” 78 “One helpful indication” of a quasi-sovereign interest is
“whether the injury is one that the State, if it could, would likely attempt to
address through its sovereign lawmaking powers.” 79
An agency action may affect a quasi-sovereign interest if it is alleged
to damage certain “sovereign prerogatives [that] are now lodged in the
Federal Government.” 80 In DAPA, we observed that “[w]hen the states
joined the union, they surrendered some of their sovereign prerogatives over
immigration,” including their power to “establish their own classifications
of aliens.” 81 We concluded that this interest in classifying aliens was
analogous to the interest in regulating emissions that the Supreme Court
deemed a quasi-sovereign interest in Massachusetts v. EPA. 82 “Both these
plaintiff states and Massachusetts now rely on the federal government to
protect their interests,” so DAPA affected the states’ quasi-sovereign

76
Id. at 602.
77
Id.
78
Id. at 607.
79
Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (quoting Snapp, 458 U.S. at 607).
80
Id.
81
DAPA, 809 F.3d 134, 153 (5th Cir. 2015).
82
549 U.S. 497 (2007); DAPA, 809 F.3d at 155.

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interests. 83 DACA does the same. Like DAPA, DACA implicates Texas’s
quasi-sovereign interest in classifying aliens.
The DACA Recipients claim that this case is different. In DAPA, they
point out, we recognized a quasi-sovereign interest on two grounds: “the
direct, substantial pressure directed at the states [to change their laws] and
the fact that they have surrendered some of their control over immigration to
the federal government.” 84 Here, the Recipients suggest, there is only the
surrender of control over immigration; there is no pressure on Texas to
change specific laws.
The DAPA decision considered a Texas law that required issuance of
a driver’s license to a noncitizen who presented proper documentation
authorizing the alien to be present in the United States. 85 DAPA granted
lawful permanent status to those eligible for that program, and there was
evidence that a substantial number of DAPA beneficiaries would apply for a
driver’s license. 86 Texas subsidizes its licenses, and the record reflected that
the State would lose $130.89 on each license it issued to a DAPA
beneficiary. 87 We concluded that the economic incentive Texas had to
change its laws subsidizing driver’s licenses for authorized noncitizens gave

83
DAPA, 809 F.3d at 154.
84
Id. at 154-55.
85
Id. at 155.
86
Id. (“If permitted to go into effect, DAPA would enable at least 500,000 illegal
aliens in Texas to satisfy that requirement with proof of lawful presence or employment
authorization. Texas subsidizes its licenses and would lose a minimum of $130.89 on each
one it issued to a DAPA beneficiary. Even a modest estimate would put the loss at ‘several
million dollars.’”) (footnotes omitted).
87
Id.

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rise to a quasi-sovereign interest. 88 But we also noted Texas might not be

able to change its laws if challenges based on federal preemption or violations
of the Equal Protection Clause were mounted. 89 We recognized that a State’s
inability to legislate around DACA can create a quasi-sovereign interest. 90 In
Massachusetts, the State had a quasi-sovereign interest because it could not
regulate greenhouse gases. 91 The Court explained that “Massachusetts
cannot invade Rhode Island to force reductions in greenhouse gas emissions,
it cannot negotiate an emissions treaty with China or India, and in some
circumstances the exercises of its police powers to reduce in-state motor-
vehicle emissions might well be pre-empted.” 92 The Court did not identify
any law that Massachusetts would be moved to change. Rather, its holding
depended on the constraints on the State’s ability to respond. Similarly, in
DAPA, we indicated that a quasi-sovereign interest could arise based on
“federal preemption of state law.” 93
DACA implicates preemption concerns. It classifies aliens and their
status while in this country. “The federal government alone, however, has
the power to classify non-citizens.” 94 “Policies pertaining to the entry of
aliens and their right to remain here are . . . entrusted exclusively to

88
Id.
89
Id. at 153.
90
Id. at 154 (“So too are the states asserting institutional injury to their lawmaking
authority.”).
91
Massachusetts v. EPA, 549 U.S. 497, 519 (2007).
92
Id.
93
DAPA, 809 F.3d at 153; see also Wyoming ex rel. Crank v. United States, 539 F.3d
1236, 1242 (10th Cir. 2008) (“Federal regulatory action that preempts state law creates a
sufficient injury-in-fact to satisfy this prong.”)
94
Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 536 (5th Cir.
2013) (en banc).

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Congress. . . .” 95 An attempt by Texas to establish an alternative

classification system or work authorizations would be preempted, despite the
State’s likely interest in doing so. 96 “‘The pervasiveness of federal
regulation does not diminish the importance of immigration policy to the
States,’ which ‘bear[] many of the consequences of unlawful
immigration.’” 97 The importance of immigration policy and its
consequences to Texas, coupled with the restraints on Texas’ power to make
it, create a quasi-sovereign interest. 98
The Recipients argue that DACA does not affect quasi-sovereign
interests because it regulates private actors rather than the States. They cite
the Supreme Court’s decision in Murphy v. NCAA, 99 which invalidated a
federal law that prohibited states from authorizing sports gambling
schemes. 100 The law violated the anticommandeering doctrine because it
“unequivocally dictate[d] what a state legislature may and may not do.” 101
DACA does not operate as a direct command to the states, the Recipients
argue, so it does not infringe upon states’ sovereignty.
The DACA Memorandum may not commandeer the states, but that
does not mean it is unrelated to state sovereignty. As Murphy itself explains,
anticommandeering and preemption are separate doctrines. In contrast to

95
Galvan v. Press, 347 U.S. 522, 531 (1954).
96
See Arizona v. United States, 567 U.S. 387, 409 (2012).
97
DAPA, 809 F.3d at 163 (quoting Arizona, 567 U.S. at 397).
98
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)
(observing that a state’s desire to legislate suggests a quasi-sovereign interest).
99
138 S. Ct. 1461 (2018).
100
Id. at 1485.
101
Id. at 1478.

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anticommandeering, “every form of preemption is based on a federal law that

regulates the conduct of private actors, not the States.” 102 Both
commandeering and preemption pertain to states’ “sovereign interest in ‘the
power to create and enforce a legal code.’” 103 DACA is a program for alien
classification, and it relates to preemption. That DACA addresses
classification and rights of individual aliens does not extinguish the quasi-
sovereign interests at stake.
The Government asserts there is a presumption against standing by
plaintiffs who are not the objects of the government action they challenge.
Our decision in DAPA rejected the applicability of this presumption. 104
There, as here, the cases that the Government cites “concerned only
nonprosecution (as distinguished from both nonprosecution and the
conferral of benefits)” 105 or “merely reaffirmed that a plaintiff must satisfy
the standing requirements.” 106 None of the cited cases concern state
plaintiffs, who the Supreme Court has recognized “are not normal litigants”
in the standing analysis. 107 The Government has not offered any reason why
the presumption would apply here when it did not in DAPA.

102
Murphy, 138 S. Ct. at 1481.
103
DAPA, 809 F.3d 134, 153 (5th Cir. 2015) (quoting Tex. Off. of Pub. Util. Counsel
v. FCC, 183 F.3d 393, 449 (5th Cir. 1999)).
104
DAPA, 809 F.3d at 154.
105
Id. (citing Linda R.S. v. Richard D., 410 U.S. 614, 615-16 (1973)); see also Sure-
Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984).
106
Id.
107
Massachusetts v. EPA, 549 U.S. 497, 518 (2007); cf. Sure-Tan, 467 U.S. at 897
(observing that “private persons such as petitioners have no judicially cognizable interest
in procuring enforcement of the immigration laws”).

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Texas warrants special solicitude because of its procedural right under

the APA to challenge DACA and Texas’ quasi-sovereign interest in alien
classification, an area in which the State would like to, but cannot, regulate.
B
Texas asserts standing based on direct injury. It claims that DACA
inflicts pocketbook injuries on the State in the form of healthcare, education,
and social services costs.
Texas has satisfied the first standing requirement by demonstrating
injury in fact. 108 Federal law requires the State to provide emergency
Medicaid to noncitizens and public education to all children, regardless of
their immigration status. 109 Texas presented evidence that it spends millions
of dollars providing these services to unauthorized aliens each year. 110 As the
district court’s opinion reflects, the estimated cost to Texas of providing
Emergency Medicaid services to undocumented immigrants residing in
Texas was $90 million in fiscal year 2013 and $73 million for 2015. 111 The
Texas Health and Human Services Commission estimated that the state’s
public hospital district facilities incurred approximately $596.8 million in
uncompensated care for undocumented immigrants in fiscal year 2006 and
$716.8 million in fiscal year 2008. 112 The record does not indicate precisely
what portion of all costs for illegal aliens is spent on DACA recipients, but no

108
See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).
109
See 42 C.F.R. § 435.406(b) (2022) (emergency Medicaid); Plyler v. Doe, 457
U.S. 202, 230 (1982) (public education).
110
ROA.22959-61, 23020-21.
111
Dist. Ct. Op., 549 F. Supp. 3d at 593.
112
ROA.22960.

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one disputes that some are. 113 An expert for defendants estimated that
DACA recipients overall impose a cost of more than $250,000,000 on Texas
per year and another $533,000,000 annually in costs to local Texas
communities. 114 “For standing purposes, a loss of even a small amount of
money is ordinarily an ‘injury.’” 115
The Government cites estimates that if the DACA program were to
be terminated, the State’s healthcare costs would increase for aliens who
remain in Texas, because they would lose their jobs and employer-based
health insurance and would rely more on emergency Medicaid. 116 That may
be, but these estimates do not account for the cost savings—healthcare and
educational—from others’ departure. 117 Texas would no longer be required
to educate those who depart or the children who depart with them. In any
event, this court held with regard to standing in the DAPA case that “[o]nce
injury is shown, no attempt is made to ask whether the injury is outweighed
by benefits the plaintiff has enjoyed from the relationship with the
defendant.” 118 In resolving standing, courts do not engage in such an
“accounting exercise.” 119

113
See DAPA, 809 F.3d 134, 155 (5th Cir. 2015) (holding that Texas established
injury in fact without precisely quantifying the costs of issuing driver’s licenses to DAPA
beneficiaries).
114
ROA.23026.
115
Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017).
116
ROA.18005.
117
ROA.18004 (“These estimates are based on the loss of employment-based
health insurance coverage and the need to rely on public sources of care.”).
118
DAPA, 809 F.3d 134, 155-56 (5th Cir. 2015) (quoting 13A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3531.4, at 147 (3d ed. 2015) (footnote omitted)).
119
Id. at 156 (quoting NCAA v. Gov. of N.J., 730 F.3d 208, 223 (3d Cir. 2013)).

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The defendants claim that this theory of injury lacks a limiting

principle. If social services costs qualify as injury, they argue, states could
routinely call on federal courts to broker complex debates over immigration
policy. They liken this case to El Paso County v. Trump, 120 in which the
county alleged injury because the Department of Defense canceled a
construction project, thereby reducing economic activity and tax revenues. 121
We held the county did not have standing, holding that a “loss of general tax
revenues as an indirect result of federal policy is not a cognizable injury in
fact.” 122 We recognized courts’ reluctance to recognize general tax injuries,
which could result from virtually any federal action. 123
This case is different. Texas does not allege a tax injury, let alone a
generic one. It identifies expenditures in providing emergency medical
services, social services and public education for illegal aliens. In El Paso, we
expressly noted that “the loss of a specific tax revenue” could establish
standing. 124 Specific social services costs likewise suffice. In other cases
regarding DHS programs, we have specifically recognized a state’s
“obligation to subsidize . . . additional aliens’ healthcare and education
costs” as injury in fact. 125
It may be true that standing theories based on social services costs
could spur policy-oriented litigation. However, our precedent rejects the

120
982 F.3d 332 (5th Cir. 2020).
121
Id. at 338-39.
122
Id. at 339.
123
Id. at 339-41.
124
Id. at 341.
125
Texas v. United States, 40 F.4th 205, 217 (5th Cir. 2022), cert. granted, __ S. Ct.
__, 2022 WL 2841804; see also Texas v. Biden, 20 F.4th 928, 971 (5th Cir. 2021), rev’d on
other grounds, 142 S. Ct. 2528 (2022).

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significance of this risk. As we explained in DAPA, the Supreme Court

considered similar arguments in Massachusetts and deemed them
unpersuasive. 126 After Massachusetts, “the answer to those criticisms is that
there are other ways to cabin policy disagreements masquerading as legal
claims.” 127 Restrictions on standing, special solicitude, and causes of action
serve this purpose. 128
Texas has satisfied the second requirement for standing by showing
that its costs are “fairly traceable” to DACA. 129 Texas contends that the
rescission of DACA would cause some recipients to leave, thereby reducing
the financial burdens on the State. It cites a survey of over three thousand
DACA recipients in which twenty-two percent of respondents said they were
likely or very likely to leave the country if DACA ended. 130 The Government
presents evidence that many recipients would remain without DACA, but
that does not controvert Texas’s showing that some would leave. 131
The Government argues that DACA did not cause the injury because
the State must pay for emergency Medicaid and education under preexisting
federal law. 132 DACA is not the sole cause of the State’s injury, but DACA
has exacerbated it. That is sufficient. In Massachusetts, the Court held that
the State’s injury was traceable to EPA’s decision not to regulate greenhouse

126
DAPA, 809 F.3d 134, 161 (5th Cir. 2015).
127
Id.
128
Id.
129
Id. at 150 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)).
130
ROA.23060.
131
ROA.17968, 18075-76.
132
See 42 C.F.R. § 440.255(c) (2022); Plyler v. Doe, 457 U.S. 202, 230 (1982).

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gas emissions. 133 Of course, the refusal to regulate was not the sole cause of
the emissions. It was enough that EPA’s decision “contribute[d] to
Massachusetts’ injuries.” 134 Similarly, DACA has contributed to an injury,
saddling the State with additional healthcare and education costs each year.
The causal chain is much more direct than the one the Court accepted in
Massachusetts. 135
The third element of standing requires Texas to show that rescinding
DACA will redress its injury. Normally, “[t]o satisfy redressability, a
plaintiff must show that ‘it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.’” 136 With special
solicitude, however, a state can establish redressability “without meeting all
the normal standards.” 137 The standard is met “if there is some possibility
that the requested relief” will reduce the harm. 138
Texas has made the requisite showing. Those presently subject to
DACA would be removable if the DACA program were ended, providing

133
Massachusetts v. EPA, 549 U.S. 497, 523 (2007).
134
Id.; see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
134 n.6 (2014) (“Proximate causation is not a requirement of Article III standing, which
requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.”).
135
See Massachusetts, 549 U.S. at 521-23 (holding that traceability was satisfied
because EPA’s refusal to regulate contributed to motor-vehicle emissions, which may in
turn contribute to a rise in sea levels, which may in turn erode state coastal property).
136
Inclusive Cmtys. Project, Inc. v. Dep’t of Treasury, 946 F.3d 649, 655 (5th Cir.
2019) (emphasis omitted) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 181 (2000)).
137
Massachusetts, 549 U.S. at 517-18 (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 572 n.7 (1992)).
138
Id. at 518; see also id. at 526 (holding that Massachusetts satisfied redressability
because the risk of harm “would be reduced to some extent if petitioners received the relief
they seek”).

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incentives for some if not many to leave the United States, including Texas.
There is evidence that if DACA were no longer in effect, at least some
recipients would leave, and their departure would reduce the State’s
Medicaid, social services and education costs for those individuals and their
families who depart with them. Especially with the benefit of special
solicitude, Texas has established that rescinding DACA would redress its
harm. Accordingly, Texas has demonstrated standing based on its direct
injury.
IV
As discussed above, while this appeal was pending, DHS concluded
its rulemaking proceeding regarding DACA and issued a Final Rule.
However, the Final Rule does not become effective until October 31, 2022. 139
The issuance of the Final Rule does not moot the present appeal. The 2012
DACA Memorandum would continue in full effect but for the district court’s
judgment. Were we to reverse the district court’s judgment and conclude
that the DACA Memorandum did not violate substantive law, its provisions
would once again have full effect until October 31, 2022. Among other
effects, such a ruling would permit DHS to grant DACA status to applicants
before October 31, 2022, which it is not now permitted to do under the
district court’s judgment. Whether the DACA Memorandum is inconsistent
with the INA is ripe for decision and not moot.
V
For the first time on appeal, the Government argues that the States’
claims fall outside the INA’s zone of interests. We need not consider zone-
of-interests objections that were not raised below, but at times we have

139
Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152 (Aug. 30, 2022) (to
be codified at 8 C.F.R. pts 106, 236, and 274a).

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exercised our discretion to do so. 140 Even if we exercised that discretion here,
we would conclude that the States’ claims fall within the zone of interests.
The test here is “not ‘especially demanding.’” 141 We assess the zone
of interests “in keeping with Congress’s ‘evident intent’ when enacting the
APA ‘to make agency action presumptively reviewable.’” 142 The test is
satisfied if the claims are “arguably within the zone of interests to be
protected or regulated by the statute.” 143 The Supreme Court has “always
conspicuously included the word ‘arguably’ in the test to indicate that the
benefit of any doubt goes to the plaintiff.” 144 Review is foreclosed “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.’” 145
With the INA, Congress “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.’” 146 The States argue that DACA

140
See Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474 n.4 (5th Cir. 2013)
(citing cases).
141
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014)
(quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,
224 (2012)).
142
Patchak, 567 U.S. at 225 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399
(1987)).
143
Id. at 224 (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.
150, 153 (1970)).
144
Id. at 225.
145
Id. (quoting Clarke, 479 U.S. at 399).
146
Chamber of Com. v. Whiting, 563 U.S. 582, 587 (2011) (quoting DeCanas v. Bica,
424 U.S. 351, 353 (1976)).

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violates that scheme. They have an interest in seeing the INA enforced, and
in participating in notice and comment to voice their concerns. 147
In DAPA, we held that the states’ challenge fell within the INA’s zone
of interests. 148 The Government argues that this case is different because of
the different harms alleged. The driver’s license costs in DAPA fell within
the INA, the Government says, because Congress permitted states to deny
those benefits to unauthorized aliens. Not so, the Government argues, with
emergency medical and public education costs, which federal law requires
states to provide.
This argument misunderstands the States’ claims. The States do not
contest their obligation to pay these costs. Rather, they seek to reduce them.
The INA encompasses their concerns about the financial burdens of illegal
immigration. “It’s clear that the INA aimed, at least in part, to protect States
from just those kinds of [fiscal] harms.” 149 The States’ objectives are
consistent with the INA’s, so they pass the lenient zone-of-interests test.
VI
We now turn to the merits. On summary judgment, the district court
held that DACA violates the APA’s procedural and substantive
requirements. 150 We review a grant of summary judgment de novo, applying
the same standards as the district court. 151 Summary judgment is appropriate

147
See Arizona v. United States, 567 U.S. 387, 397 (2012); DAPA, 809 F.3d 134, 163
(5th Cir. 2015).
148
DAPA, 809 F.3d at 163.
149
Texas v. Biden, 20 F.4th 928, 971 (5th Cir. 2021), rev’d on other grounds, 142 S.
Ct. 2528 (2022).
150
Texas v. United States, 549 F. Supp. 3d 572, 603, 621 (S.D. Tex. 2021).
151
Johnson v. World All. Fin. Corp., 830 F.3d 192, 195 (5th Cir. 2016).

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“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 152 When there
are cross-motions for summary judgment, “we review each party’s motion
independently, viewing the evidence and inferences in the light most
favorable to the nonmoving party.” 153
A
Procedurally, the States argue that DACA failed to undergo necessary
notice and comment. The Government maintains that DACA is a general
statement of policy exempt from notice and comment.
The APA requires substantive rules to undergo notice and comment,
whereas policy statements need not. 154 Substantive rules “create law.” 155
They typically “grant rights, impose obligations, or produce other significant
effects on private interests.” 156 By contrast, policy statements “announc[e]
motivating factors the agency will consider, or tentative goals toward which
it will aim, in determining the resolution of a substantive question of
regulation.” 157 The notice-and-comment exemption for policy statements
“must be narrowly construed.” 158

152
Fed. R. Civ. P. 56(a).
153
Green v. Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014) (quoting Duval
v. N. Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013)).
154
Pros. & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995)
(citing 5 U.S.C. § 553(b)(3)(A), (d)(2)).
155
W&T Offshore, Inc. v. Bernhardt, 946 F.3d 227, 237 (5th Cir. 2019) (quoting
Phillips Petrol. Co. v. Johnson, 22 F.3d 616, 619 (5th Cir. 1994)).
156
Id. (quoting Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th
Cir. 1983)).
157
Shalala, 56 F.3d at 601 (quoting Phillips, 22 F.3d at 620).
158
Id. at 595 (quoting United States v. Picciotto, 875 F.2d 345, 347 (D.C. Cir. 1989)).

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We distinguish policy statements from substantive rules based on two

criteria: whether the pronouncement “(1) ‘impose[s] any rights and
obligations’ and (2) ‘genuinely leaves the agency and its decision-makers free
to exercise discretion.’” 159 We are “mindful but suspicious of the agency’s
own characterization” of what it has done. 160 “[C]ourts have long looked to
the contents of the agency’s action, not the agency’s self-serving label, when
deciding whether statutory notice-and-comment demands apply.” 161 Our
primary focus is “whether the rule has binding effect on agency discretion or
severely restricts it.” 162
Under the first factor, DACA imposes rights and obligations. In
Regents, 163 the Supreme Court explained that “the DACA Memorandum
does not announce a passive non-enforcement policy; it created a program
for conferring affirmative immigration relief.” 164 This relief is granted
following extensive proceedings that are “effectively ‘adjudications.’” 165 At
the memorandum’s direction, “USCIS solicited applications from eligible
aliens, instituted a standardized review process, and sent formal notices
indicating whether the alien would receive the two-year forbearance.” 166
Over 800,000 individuals have obtained forbearance under these

159
DAPA, 809 F.3d 134, 171 (5th Cir. 2015) (quoting Shalala, 56 F.3d at 595).
160
Shalala, 56 F.3d at 595.
161
Azar v. Allina Health Servs., 139 S. Ct. 1804, 1812 (2019).
162
DAPA, 809 F.3d at 171 (quoting Shalala, 56 F.3d at 595).
163
140 S. Ct. 1891 (2020).
164
Id. at 1906.
165
Id. (alteration omitted).
166
Id.

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directives. 167 This expansive, organized process has none of the tentative
character of a policy statement. 168
The relief at stake is of vital importance to recipients. 169 The program
consists of two parts, a “forbearance component” and “eligibility for
benefits.” 170 The two-year forbearance grant is “an ‘affirmative act of
approval,’” 171 and “[t]he benefits attendant to deferred action provide
further confirmation that DACA is more than simply a non-enforcement
policy.” 172 “[B]y virtue of receiving deferred action,” recipients may seek
work authorization and become eligible for Social Security and Medicare. 173
“[A]ccess to these types of benefits is an interest ‘courts often are called
upon to protect.’” 174 There is no doubt that these rewards
“produce . . . significant effects on private interests.” 175
The Government argues that DACA confers no rights because the
memorandum says it does not. To be sure, the memorandum states that it
“confers no substantive right, immigration status, or pathway to

167
Dist. Ct. Op., 549 F. Supp. 3d at 599.
168
See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983);
Am. Bus Ass’n v. United States, 627 F.2d 525, 530 (D.C. Cir. 1980).
169
See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914 (2020).
170
Id. at 1911.
171
Id. at 1906 (quoting Heckler v. Chaney, 470 U.S. 821, 831 (1985)).
172
Id.
173
Id.
174
Id. (quoting Heckler, 470 U.S. at 832).
175
Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 908 (5th Cir. 1983)
(quoting Batterton v. Marshall, 648 F.2d 694, 702 (D.C. Cir. 1980)).

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citizenship.” 176 But an agency’s characterization of its own action is only

“the starting point.” 177 Our ultimate concern is the “contents of the agency’s
action.” 178 Even on its face, the memorandum describes the significance of
what it does. The memorandum directs agencies to “defer[] action for a
period of two years, subject to renewal” for eligible individuals, and it says
that USCIS “shall accept applications to determine whether these
individuals qualify for work authorization during this period of deferred
action.” 179 The memorandum attests to the rights that DACA makes
available, and the reality goes beyond that.
Under the second factor, we assess whether DACA genuinely leaves
the agency and its decision-makers free to exercise discretion. An agency’s
pronouncement “will 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.” 180
There is language in the memorandum that appears to confer
discretion. It instructs agencies to review applications “on a case by case
basis” and repeatedly refers to the program as an “exercise of prosecutorial
discretion.” 181 Importantly, however, the memorandum narrows and

176
Memorandum from Janet Napolitano, Sec’y, Dep’t of Homeland Sec., to David
Aguilar, Acting Comm’r, U.S. Customs and Border Prot., et al. (June 15, 2012) (DACA
Memorandum) (ROA.350-52), https://www.dhs.gov/xlibrary/assets/s1-exercising-
prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
177
Pros. & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995).
178
Azar v. Allina Health Servs., 139 S. Ct. 1804, 1812 (2019).
179
DACA Memorandum at 2-3.
180
DAPA, 809 F.3d 134, 171 (5th Cir. 2015) (quoting Gen. Elec. Co. v. EPA, 290
F.3d 377, 383 (D.C. Cir. 2002)).
181
DACA Memorandum at 1-2.

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channels that discretion. That is its stated purpose. It “set[s] forth how, in
the exercise of our prosecutorial discretion, the Department of Homeland
Security (DHS) should enforce the Nation’s immigration laws against
certain young people.” 182 It lists a fixed set of “criteria [that] should be
satisfied before an individual is considered for an exercise of prosecutorial
discretion.” 183 It dictates what that discretion should be used to do.
Agencies “should exercise prosecutorial discretion . . . by deferring action
for a period of two years, subject to renewal.” 184
There is a fact dispute over whether agents retain discretion to reject
applicants who meet the criteria. The States cite evidence that a USCIS
center in Texas never rejected an applicant who met the criteria. 185 But other
evidence in the record shows the criteria are not dispositive. DACA training
staff report that discretionary denials occur according to a totality of the
circumstances standard that boils down to “whether or not you would want
to live next door to the person.” 186
Viewing this evidence in the light most favorable to the defendants,
we assume that agents do have discretion to reject applicants who meet the
criteria. Even so, DACA is not a policy statement. “The mere existence of
some discretion is not sufficient, although it is necessary for a rule to be
classified as a general statement of policy.” 187 Here, little else suggests that

182
Id. at 1.
183
Id.
184
Id. at 2.
185
ROA.23080.
186
ROA.7705; see also ROA.935-36.
187
Guardian Fed. Sav. & Loan Ass’n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658,
667 (D.C. Cir. 1978).

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DACA would be a policy statement. DACA created a detailed, streamlined

process for granting enormously significant, predefined benefits to over
800,000 people. This constitutes a substantive rule. 188 Because DACA did
not undergo notice and comment, it violates the procedural requirements of
the APA.
B
The States contend, and the district court held, that DACA also
violates the APA’s substantive requirements. 189 The APA requires courts to
“hold unlawful and set aside agency action” that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,” or “in excess
of statutory jurisdiction, authority, or limitations, or short of statutory
right.” 190 We assume without deciding that the two-part Chevron 191
framework applies. 192
Under Chevron, we first “ask whether Congress has ‘directly
addressed the precise question at issue.’” 193 For many of the reasons we
explained in DAPA, Congress has. “Federal governance of immigration and

188
See Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1112-13 (D.C. Cir. 1974) (holding
that parole guidelines were “substantive agency action, for they define a fairly tight
framework to circumscribe the Board’s statutorily broad power” and “were of a kind
calculated to have a substantial effect on ultimate parole decisions”).
189
Dist. Ct. Op., 549 F. Supp. 3d at 624 (holding that “DHS violated the APA with
the creation of DACA and its continued operation”).
190
5 U.S.C. § 706(2)(A), (C).
191
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
192
See DAPA, 809 F.3d 134, 178 & n.160 (5th Cir. 2015).
193
Mayo Found. for Med. Educ. & Rsch. v. United States, 562 U.S. 44, 52 (2011)
(quoting Chevron, 467 U.S. at 843).

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alien status is extensive and complex.” 194 Congress created an intricate

statutory scheme for determining which classes of aliens may receive lawful
presence, 195 discretionary relief from removal, 196 deferred action, 197 and work
authorization. 198 As we said in DAPA:
In specific and detailed provisions, the INA expressly and
carefully provides legal designations allowing defined classes of
aliens to be lawfully present and confers eligibility for
“discretionary relief allowing [aliens in deportation
proceedings] to remain in the country.” Congress has also

194
DAPA, 809 F.3d 134, 178-79 (5th Cir. 2015) (quoting Arizona v. United States,
567 U.S. 387, 396 (2012)).
195
Id. at 179 & n.162 (citing 8 U.S.C. §§ 1101(a)(20), 1255 (lawful permanent
resident status); §§ 1101(a)(15), 1201(a)(1) (nonimmigrant status); §§ 1101(a)(42), 1157-
59, 1231(b)(3) (refugee and asylum status); § 1182(d)(5) (humanitarian parole); § 1254a
(temporary protected status)).
196
Id. & n.163 (citing 8 U.S.C. § 1158 (asylum); § 1227(d) (administrative stays of
removal for victims of human trafficking and other serious crimes who assist law
enforcement); § 1229b (cancellation of removal), § 1229c (voluntary departure)).
197
Id. at 179 & n.164-66 (citing 8 U.S.C. § 1154(a)(1)(D)(i)(II), (IV) (Violence
Against Women Act petitioners); § 1227(d)(2) (specifying that “[t]he denial of a request
for an administrative stay of removal [for visa applicants who are victims of human
trafficking and other serious crimes] 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”); USA PATRIOT Act of 2001, Pub. L. No. 107-
56, § 423(b), 115 Stat. 272, 361 (immediate family members of lawful permanent residents
killed by terrorism); National Defense Authorization Act for Fiscal Year 2004, Pub. L. No.
108-136, § 1703(c)-(d), 117 Stat. 1392, 1694-95 (immediate family members of lawful
permanent residents killed in combat and granted posthumous citizenship)).
198
Id. at 181 & n.172 (citing 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 workers in lawful-temporary-resident status); § 1184(c)(2)(E), (e)(6) (spouses
of L- and E-visa holders); § 1184(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)).

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identified narrow classes of aliens eligible for deferred action,

including certain petitioners for immigration status under the
Violence Against Woman Act of 1994, immediate family
members of lawful permanent residents (“LPRs”) killed by
terrorism, and immediate family members of LPRs killed in
combat and granted posthumous citizenship. . . .
The INA also specifies classes of aliens eligible and ineligible
for work authorization. . . . Congress “‘forcefully’ made
combating the employment of illegal aliens central to ‘[t]he
policy of immigration law,’” in part by “establishing an
extensive ‘employment verification system,’ designed to deny
employment to aliens who . . . are not lawfully present in the
United States.” 199
Congress’s rigorous classification scheme forecloses the contrary
scheme in the DACA Memorandum. “Entirely absent from those specific
classes” Congress defined is the group of 1.7 million aliens “who would be
eligible for lawful presence” under DACA. 200 DACA creates a new class of
otherwise removable aliens who may obtain lawful presence, work
authorization, and associated benefits. Congress determined which aliens
can receive these benefits, and it did not include DACA recipients among
them. We agree with the district court’s reasoning and its conclusions that
the DACA Memorandum contravenes comprehensive statutory schemes for
removal, allocation of lawful presence, and allocation of work
authorization. 201 DACA fails at step one of Chevron.

199
Id. at 179-81 (footnotes omitted) (first quoting Arizona, 567 U.S. at 396 (2012);
and then quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002)
(alteration in original) (emphasis added) (quoting INS v. Nat’l Ctr. for Immigrants’ Rights,
Inc., 502 U.S. 183, 194 n.8 (1991))).
200
Id. at 179.
201
See Dist. Ct. Op., 549 F. Supp. 3d at 607-10.

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DHS asserts that the program set forth in the DACA Memorandum
is an exercise of its inherent prosecutorial discretion. The district court
cogently and thoroughly analyzed this argument and rejected it. 202 We agree
with the district court. As our court held in DAPA, “‘[a]lthough
prosecutorial discretion is broad, it is not “unfettered.”’ Declining to
prosecute does not transform presence deemed unlawful by Congress into
lawful presence and confer eligibility for otherwise unavailable benefits based
on that change.” 203
Even if the INA were ambiguous, DACA would fail at step two
because it is an unreasonable interpretation of the INA. 204 Like DAPA,
DACA “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.’” 205
There is no “clear congressional authorization” for the power that
DHS claims. 206 The Government cites provisions that authorize the
Secretary to “[e]stablish[] national immigration enforcement policies and
priorities” and to carry out the administration and enforcement of
immigration laws, including to “establish such regulations,” “issue such
instructions,” and “perform such other acts as he deems necessary for

202
See id. at 605-06.
203
DAPA, 809 F.3d 134, 167 (5th Cir. 2015) (footnote omitted) (quoting Wayte v.
United States, 470 U.S. 598, 608 (1985)).
204
See id. at 182.
205
Id. at 181 (quoting King v. Burwell, 576 U.S. 473, 486 (2015)).
206
West Virginia v. EPA, 142 S. Ct. 2587, 2614 (2022) (quoting Util. Air Regul. Grp.
v. EPA, 573 U.S. 302, 324 (2014)).

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carrying out his authority.” 207 Writing about these same provisions in
DAPA, we said that these “broad grants of authority . . . cannot reasonably
be construed as assigning ‘decisions of vast economic and political
significance’ . . . to an agency.” 208
The defendants’ attempts to distinguish DACA and DAPA are
unavailing. They argue that DACA is different because DAPA contravened
a statutory process for how parents can derive lawful classification from their
children. While the INA contains no such process for DACA recipients, that
does not reduce the conflict. It simply means that Congress made no
provision for DACA recipients to obtain lawful presence. In any case, that
contradiction was just one among the many that we identified. 209
The defendants also attempt to distinguish DACA based on its size.
About 4.3 million aliens would have been eligible for DAPA, whereas about
1.5 million aliens are eligible for DACA. 210 The Government likens DACA
to the Reagan Administration’s Family Fairness program, which deferred
deportation indefinitely for about 1.5 million family members of legalized
aliens. 211 This comparison is not revealing. As we explained in DAPA,
“historical practice . . . ‘does not, by itself, create power,’ and in any event,
previous deferred-action programs are not analogous.” 212 We specifically

207
See 6 U.S.C. § 202(5); 8 U.S.C. § 1103(a).
208
DAPA, 809 F.3d at 183 (internal quotations and citations omitted) (quoting Util.
Air Reg. Grp., 573 U.S. at 324); see also West Virginia, 142 S. Ct. at 2614 (“[A] vague
statutory grant is not close to the sort of clear authorization required by our precedents.”).
209
See DAPA, 809 F.3d at 179-81.
210
See DAPA, 809 F.3d at 148; ROA.25167.
211
ROA.573.
212
DAPA, 809 F.3d at 179, 184 (5th Cir. 2015) (footnote omitted) (quoting Medellin
v. Texas, 552 U.S. 491, 532 (2008)).

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distinguished the Family Fairness program for being “interstitial to a

statutory legalization scheme.” 213 By contrast, “Congress has repeatedly
declined to enact the Development, Relief, and Education for Alien Minors
Act (‘DREAM Act’), features of which closely resemble DACA and
DAPA.” 214
The relevant comparison is between DAPA and DACA. Any
difference in size does not meaningfully diminish the importance of the issues
at stake. As the parties and their amici attest, DACA is of enormous political
and economic significance to supporters and opponents alike. Amici
businesses report that national GDP may contract by as much as $460 billion
without DACA. 215 An expert for the Intervenors estimated that DACA
contributes over $3.5 billion in net fiscal benefits to federal, state, and local
entities. 216 Our concerns about the scale of DAPA apply with force here too.
Like DAPA, DACA “is foreclosed by Congress’s careful plan; the
program is ‘manifestly contrary to the statute.’” 217 DACA violates the
substantive requirements of the APA.

213
Id. at 185 (footnote omitted).
214
Id.
215
See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914 (2020) (reporting
estimates that “excluding DACA recipients from the lawful labor force may . . . result in
the loss of $215 billion in economic activity and an associated $60 billion in federal tax
revenue over the next ten years”).
216
ROA.23026.
217
DAPA, 809 F.3d at 186 (quoting Mayo Found. for Med. Educ. & Rsch. v. United
States, 562 U.S. 44, 23 (2011)).

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VII
The district court vacated and remanded DACA to DHS, and it
granted a permanent injunction, which it stayed as to existing recipients. 218
The defendants raise several remedies issues. First, they suggest that the
district court lacked jurisdiction to vacate and enjoin DACA. Second, they
argue that vacatur was inappropriate. Third, they dispute the nationwide
scope of the injunction. Finally, they ask that this court retain the stay as to
existing recipients pending additional appeal.
A
After the conclusion of appellate briefing, in a Rule 28(j) 219 letter, the
Government suggested for the first time that 8 U.S.C. § 1252(f)(1) deprives
the district court of jurisdiction to vacate and enjoin DACA. 220 Section
1252(f)(1) reads:
(f) Limit on injunctive relief
(1) In general
Regardless of the nature of the action or claim or of the identity
of the party or parties bringing the action, no court (other than
the Supreme Court) shall have jurisdiction or authority to
enjoin or restrain the operation of the provisions of [8 U.S.C.
§§ 1221-32], other than with respect to the application of such

218
ROA.25240-44.
219
See Fed. R. App. P. 28(j) (“If pertinent and significant authorities come to a
party’s attention after the party’s brief has been filed—or after oral argument but before
decision—a party may promptly advise the circuit clerk by letter, with a copy to all other
parties, setting forth the citations. The letter must state the reasons for the supplemental
citations, referring either to the page of the brief or to a point argued orally.”).
220
Dkt. #222 (Rule 28(j) letter); see also Dkt. #223 (States’ response).

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provisions to an individual alien against whom proceedings

under such part have been initiated. 221
The Supreme Court recently explained that Ҥ 1252(f)(1) generally prohibits
lower courts from entering injunctions that order federal officials to take or
to refrain from taking actions to enforce, implement, or otherwise carry out
the specified statutory provisions.” 222
We assume without deciding that the § 1252(f)(1) argument the
Government has raised for the first time on appeal is not subject to
forfeiture. 223 The statute does not bar the relief ordered here.
As an initial matter, § 1252(f)(1) does not apply to vacatur. The
Supreme Court has cautioned that, “[b]y its plain terms, and even by its title,
[§ 1252(f)(1)] is nothing more or less than a limit on injunctive relief.” 224 We
have declined to extend the statutory bar to vacatur because of this
admonition and the “meaningful differences” between injunctions and
vacatur.225 Vacatur is “a less drastic remedy.” 226 “Apart from the
constitutional or statutory basis on which the court invalidated an agency
action, vacatur neither compels nor restrains further agency decision-
making.” 227

221
8 U.S.C. § 1252(f)(1).
222
Garland v. Aleman Gonzalez, 142 S. Ct. 2057, 2065 (2022).
223
See Biden v. Texas, 142 S. Ct. 2528, 2540 n.4 (2022) (expressing no view on
whether § 1252(f)(1) is “subject to forfeiture”).
224
Id. at 2540 (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
481 (1999)).
225
Texas v. United States, 40 F.4th 205, 219 (5th Cir. 2022), cert. granted, __S. Ct.
__, 2022 WL 2841804.
226
Id. (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010)).
227
Id. at 220.

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Nor does § 1252(f)(1) apply to the injunction in this case. The district
court’s judgment vacates the DACA Memorandum but stays the vacatur as
to those who have been granted DACA status. No present DACA recipient
is subject to removal under the district court’s existing judgment.
As to those seeking admission to the DACA program, as noted,
§ 1252(f)(1) prohibits injunctions only as to §§ 1221-1232. Nothing in
§§ 1221-1232 authorizes DHS to broaden the categories of aliens who are
entitled to lawful presence in the United States, and the district court
correctly so held. The district court’s judgment does prohibit the grant of
DACA status to those who were not presently DACA recipients at the time
of the district court’s judgment. However, that judgment does not require
the removal of any DACA applicant. It bears repeating: the district court’s
judgment does not require DHS to remove anyone.
B
We next consider the propriety of vacatur. We review the district
court’s vacatur decision for abuse of discretion. 228 Two factors determine
whether vacatur is warranted: “(1) the seriousness of the deficiencies of the
action, that is, how likely the agency will be able to justify its decision on
remand; and (2) the disruptive consequences of the vacatur.” 229 Remand
without vacatur of the agency action is “generally appropriate when there is

228
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1051
(D.C. Cir. 2021).
229
United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir.
2019) (quoting Heartland Reg’l Med. Ctr. v. Sebelius, 556 F.3d 193, 197 (D.C. Cir. 2009)).

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at least a serious possibility that the agency will be able to substantiate its
decision given an opportunity to do so.” 230
Under the first factor, DACA’s deficiencies are severe. The district
court’s excellent opinion correctly identified fundamental substantive
defects in the program. The DACA Memorandum contradicts significant
portions of the INA. There is no possibility that DHS could obviate these
conflicts on remand.
New Jersey suggests DACA’s deficiencies are not severe and remand
without vacatur is appropriate because “even assuming DACA is unlawful”
“the Supreme Court itself has recognized that significant policy choices
remain available to DHS.” New Jersey asserts DHS is engaged in
promulgating a new regulation and “some form of forbearance explicitly
‘remain[s] squarely within [DHS’s] discretion.’” The Supreme Court has
recognized that the DACA Memorandum has two components, forbearance
and benefits. 231 But in order to determine whether the district court abused
its discretion in ordering vacatur of the DACA Memorandum, we need not
and do not decide, in light of our holdings today that the DACA
Memorandum was contrary to provisions of the INA, what the bounds of
DHS’s discretion with regard to “forbearance without benefits” might be.
First, the district court stayed vacatur as to existing DACA
recipients. 232 Second, the district court’s decision not to stay vacatur as to
the grant of new DACA permits implicitly and reasonably recognized that the

230
Tex. Ass’n of Mfrs. v. U.S. Consumer Prod. Safety Comm’n, 989 F.3d 368, 389-90
(5th Cir. 2021).
231
DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (“[D]eferred
action coupled with the associated benefits are the two legs upon which the DACA policy
stands.”).
232
Dist. Ct. Op., 549 F. Supp. 3d at 624; ROA.25243.

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pool of DACA recipients who might come to rely on DACA’s forbearance as

to removal should not be enlarged pending appeal. Third, the district court
explicitly left open how DHS might address “forbearance without the award
of benefits” in the then-ongoing rulemaking. 233
The second factor in considering the propriety of vacatur is the
disruptive consequences. New Jersey argues that the district court neglected
the weighty reliance interests that have developed. On the contrary, the
district court recognized that “[h]undreds of thousands of individual DACA
recipients, along with their employers, states, and loved ones, have come to
rely on the DACA program.” 234 Because DACA has created “such
significant reliance,” the district court decided to stay the effects of vacatur
as to the existing recipients, who could both retain current benefits and seek
to renew them, pending the outcome of a rulemaking proceeding. 235
Especially in light of DACA’s critical substantive failings, the district
court was well within its discretion to order vacatur. 236 The district court
further exhibited restraint by partially and temporarily staying the application
of its vacatur order.
C
The defendants also contest the nationwide scope of the district
court’s judgment. We review the grant of a permanent injunction for abuse

233
Dist. Ct. Op., 549 F. Supp. 3d at 622.
234
ROA.25242.
235
ROA.25242-43.
236
See Am. Bankers Ass’n v. Nat’l Credit Union Ass’n, 934 F.3d 649, 673 (D.C. Cir.
2019) (quoting United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir.
2019)) (“When a rule is contrary to law, the ‘ordinary practice is to vacate’ it.”).

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of discretion. 237 “A district court abuses its discretion if it (1) relies on clearly
erroneous factual findings or erroneous conclusions of law when deciding to
grant the injunction, or (2) misapplies the factual or legal conclusions when
fashioning its injunctive relief.” 238
The district court explained that a nationwide injunction was
appropriate because the “public interest of the nation is always served by the
cessation of a program that was created in violation of law and whose
existence violates the law.” 239 It considered the “reliance interests of the
Plaintiff States on the duly enacted immigration laws of this country, the
interests of the public in having the Government and its agencies comply with
the law, and the significant reliance interests that DACA has engendered
since its inception” and concluded that nationwide relief with a partial stay
was appropriate. 240
This reasoning was not an abuse of discretion. Our decision to uphold
the nationwide injunction, rather than more narrowly tailored relief, is based
on our reading of circuit precedent. “In the context of immigration law,
broad relief is appropriate to ensure uniformity and consistency in
enforcement.” 241 A more limited remedy would “detract[] from the
‘integrated scheme of regulation’ created by Congress.’” 242

237
Valentine v. Collier, 993 F.3d 270, 280 (5th Cir. 2021).
238
Id. (internal quotations omitted).
239
ROA.25241.
240
ROA.25244.
241
Texas v. United States, 40 F.4th 205, 229 n.18 (5th Cir. 2022), cert. granted, __
S. Ct. __, 2022 WL 2841804.
242
DAPA, 809 F.3d 134, 187 (5th Cir. 2015) (quoting Arizona v. United States, 567
U.S. 387, 402 (2012)).

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D
Finally, New Jersey requests that we retain the stay of the injunction
as to current DACA recipients pending further appeal. The plaintiff States
do not indicate any opposition to this request.
A stay is “an exercise of judicial discretion,” and “[t]he propriety of
its issue is dependent upon the circumstances of the particular case.” 243 Our
stay inquiry considers four factors: “(1) whether the stay applicant has made
a strong showing that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in the proceeding;
and (4) where the public interest lies.” 244 We do not apply the factors “in a
rigid, mechanical fashion.” 245 Our stay authority permits responsible action
when we are “faced with serious legal questions that merit careful scrutiny
and judicious review.” 246
The legal questions that DACA presents are serious, both to the
parties and to the public. In our view, the defendants have not shown that
there is a likelihood that they will succeed on the merits. But we are mindful
that, in the similar DAPA case, the Supreme Court was equally divided over
our judgment. 247 We also recognize that DACA has had profound
significance to recipients and many others in the ten years since its

243
Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United
States, 272 U.S. 658, 672-73 (1926)).
244
Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014).
245
United States v. Baylor Univ. Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983).
246
Campaign for S. Equality v. Bryant, 773 F.3d 55, 57 (5th Cir. 2014).
247
United States v. Texas, 579 U.S. 547, 548 (2016) (per curiam).

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adoption. 248 Given the “uncertainty of final disposition” 249 and the
“inevitable disruption that would arise from a lack of continuity and
stability,” 250 we preserve the stay as to existing recipients.
* * *
The judgment of the district court is AFFIRMED in part. This case
is REMANDED to the district court, rather than DHS. The motion for a
partial stay is GRANTED pending a further order of this court or the
Supreme Court.

248
See DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913-15 (2020).
249
Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981).
250
Campaign for S. Equality, 773 F.3d at 58.

46