Obama Non-Deportation Policy Case - Crane V Napolitano - Motion To Intervene University Leadership Initiative

Case 3:12-cv-03247-O Document 61 Filed 05/06/13
Page 1 of 6 PageID 1027
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, DAVID A.

ENGLE, ANASTASIA MARIE
CARROLL, RICARDO DIAZ,
LORENZO GARZA, FELIX
LUCIANO, TRE REBSTOCK,
FERNANDO SILVA, SAMUEL
MARTIN, and JAMES D. DOEBLER
Plaintiffs,
v.
JANET NAPOLITANO, in her official
capacity as Secretary of Homeland
Security, JOHN MORTON, in his
official capacity as Director of
Immigration and Customs Enforcement,
And ALEJANDRO MAYORKAS, in his
Official capacity as Director of the United
States Citizenship and Immigration Services
Defendants,
and
PAMELA RESNDIZ, CAROLINA CANIZALEZ,
and the UNIVERSITY LEADERSHIP INITIATIVE
Proposed Defendant-Intervenors.
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Civil Action No.

3:12-CV-3247-0
PROPOSED DEFENDANT-INTERVENORS
MOTION TO INTERVENE AS DEFENDANTS,
OR IN THE ALTERNATIVE, MOTION FOR LEAVE
TO PARTICIPATE AS AMICI CURIAE
Proposed Defendant-Intervenors Pamela Resndiz and Carolina Canizalez (collectively,
Proposed Individual Defendant-Intervenors), and the University Leadership Initiative (ULI
or Proposed Organizational Defendant-Intervenor), hereby respectfully move the Court for

leave to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2), or alternatively, permissive
intervention under Fed. R. Civ. P. 24(b)(1), so they may participate actively in this case and
protect their personal interests at stake by presenting evidence and argument that will assist the
Court with rendering its decision.
In the alternative, Proposed Defendants-Intervenors
respectfully move the Court for leave to participate as amici curiae pursuant to Local Rule 7.2.
Proposed Defendant-Intervenors respectfully submit the accompanying Memorandum of Law in
Support of Motion to Intervene as Defendants, or in the Alternative, Motion for Leave to
Participate as Amici Curiae, as Defendants, and Answer to Plaintiffs Amended Complaint, in
accordance with Local Civil Rules 7.1-7.4.
Proposed Defendant-Intervenors Proposed Answer and in the alternative, proposed Brief
as Amici, are attached to this Motion as Exhibits A and B, respectively.
Proposed Defendant-Intervenors, who stand to be negatively and personally affected by
the outcome in this case, seek to intervene in this action in order to oppose Plaintiffs request for
injunctive relief preventing the implementation of the June 15, 2012 Memorandum issued by
Defendant Secretary of Homeland Security Janet Napolitano entitled Exercising Prosecutorial
Discretion with Respect to Individuals Who Came to the United States as Children (the DHS
Memorandum). Dkt. 24 at 24. Proposed Defendant-Intervenors further oppose Plaintiffs
request for declaratory judgment that the DHS Memorandum violates the Administrative
Procedure Act and Articles I and II of the United States Constitution. Dkt. 24 at 23-24.
Proposed Defendant-Intervenors recognize this Courts interest in the efficient conduct of
future proceedings in this matter.
Thus, if intervention is granted, Proposed Defendant-
Intervenors will (i) avoid unnecessary delays; and (ii) coordinate all future proceedings in this
action with the existing parties, to the extent possible, consistent with their respective duties and
ethical obligations to their respective clients.
Pamela Resndiz is a resident of Travis County and Carolina Canizalez is a resident of
Bexar County, Texas. Ex. C at 2, Ex. D at 2. Ms. Resndiz and Ms. Canizalez have been
granted deferred action and employment authorization under the DHS Memorandum. Ex. D at
2, Ex. D at 2.
ULI is a membership-based association and student organization of the University of
Texas at Austin (UT-Austin). Ex. E at 3. ULIs mission is to advance the educational
attainment and civil rights of undocumented immigrant youth. Id. at 3. ULI fulfills its
missions by promoting higher education for immigrant students; encouraging academic success
and civic participation among undocumented immigrant students in secondary schools; and
conducting outreach at the local, state and national level to address problems faced by
undocumented immigrant students in college. Id. at 11-15. ULI moves to intervene on behalf
of its members, including undocumented immigrant students1 currently enrolled in public
colleges and universities in Texas and who qualify for deferred action under the DHS Memo, as
well as on behalf of itself as an organization.
Both the Proposed Individual and Organizational Defendant-Intervenors have a unique
interest in the subject matter of this litigation that supports their intervention, or in the
alternative, their participation in this case as amici curiae. First, if the DHS Memorandum is
enjoined, Proposed Individual Defendant-Intervenors Resndiz and Canizalez, and members of
ULI, will either lose deferred action status or they will be not be able to renew their deferred
The term undocumented immigrant student(s) is used to describe persons residing in the United States who do
not have authorization by the U.S. government to reside in the United States. Undocumented presence in the United
States is a civil offense not a criminal violation.
action status.
Ex. C at 8, Ex. D at 10.
They will also likely lose their employment
authorization under the DHS Memo. Ex. C at 8, Ex. D at 10.

An injunction would also significantly impact the Proposed Organizational DefendantIntervenor, which will be forced to expend additional resources educating members about the
effect of the injunction on their applications for deferred action, and whose members ability to
achieve higher education and civic participation will be greatly impaired if an injunction is
entered. Ex. E at 19-21.
For all the reasons stated herein, and for those addressed in the accompanying
Memorandum of Law in Support of their Motion to Intervene as Defendants, or in the
Alternative, Motion for Leave to Participate as Amici Curiae, Proposed Defendant-Intervenors
respectfully request that this Court grant their Motion to Intervene, or alternatively, for leave to
participate as amicus curiae pursuant to Local Rule 7.2.
Dated: May 6, 2013
Respectfully submitted,
MEXICAN AMERICAN LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
s/Marisa Bono__________
Marisa Bono
State Bar No. 24052874
David G. Hinojosa
Nina Perales
110 Broadway, Ste. 300
San Antonio, Texas 78205
E-mail: mbono@maldef.org
Telephone: (210) 224-5476
Telecopier: (210) 224-5382
CLOUTMAN AND CLOUTMAN

Edward B. Cloutman III
Edward B. Cloutman IV
3301 Elm St.
Dallas, TX 75226
E-mail: crawfish11@prodigy.net
Telephone: (214) 939-9222
Telecopier: (214) 939-9229
Attorneys for Proposed Defendant-Intervenors
CERTIFICATE OF CONFERENCE
On May 6, 2013, the undersigned counsel for Proposed Defendant-Intervenors conferred
with counsel of record for Plaintiffs by electronic correspondence regarding the abovereferenced Motion. Plaintiffs are opposed to Proposed Defendant-Intervenors intervening in the
case, and they are opposed to Proposed Defendant-Intervenors participating as amici. On May 6,
2013, the undersigned counsel for Proposed Defendant-Intervenors conferred with counsel of
record for Defendants by telephone regarding the above-referenced Motion, and Defendants take
no position on Proposed Defendant-Intervenors intervening in the case or participating as amici.
/s/ Marisa Bono _______
CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2013, I electronically filed the foregoing with the Clerk of
court by using the CM/ECF system which will send a notice of electronic filing to counsel of
record who are registered participants of the Courts CM/ECF system. I further certify that I
mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of
record who are not CM/ECF participants as indicated in the notice of electronic filing.
By: _____s/Marisa Bono_
Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

DALLAS DIVISION

Plaintiffs,
v.
Defendants,
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Civil Action No.

3:12-CV-3247-0
PROPOSED DEFENDANT-INTERVENORS
BRIEF AND MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO INTERVENE AS DEFENDANTS
OR IN THE ALTERNATIVE, MOTION FOR LEAVE
TO PARTICIPATE AS AMICI CURIAE
PARTICIPATE AS AMICI CURIAE
TABLE OF CONTENTS
INRODUCTION ............................................................................................................................1
Procedural Background ................................................................................................................1
Proposed Defendant-Intervenors .................................................................................................3
Proposed Defendant-Intervenors Requested Relief ..................................................................5
ARGUMENT..................................................................................................................................6
I.
INTERVENTION AS OF RIGHT IS WARRANTED .......................................................6

A.
Movants Motion to Intervene is Timely .............................................................7
B.
Movants Seek to Vindicate a Protectable Interest ............................................11
C.
Movants Interests Would be Impaired if Intervention Were Denied........... 14
D.
The Existing Defendants Will Not Adequately Represent

Movants Interests ...............................................................................................15
II.
MOVANTS ARE ENTITLED TO PERMISSIVE INTERVENTION .......................18
III.
MOVANTS ARE ENTITLED TO PARTICIPATE AS AMICUS CURIAE..............20
CONCLUSION ............................................................................................................................20
TABLE OF AUTHORITIES
CASES
Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318 (5th Cir. 1986) ..................9
Black Fire Fighters Assn of Dallas v. City of Dallas, 19 F.3d 992 (5th Cir. 1994) .....................15
Ceres Gulf v. Cooper, 957 F.2d 1199 (5th Cir. 1992) ..............................................................10,15
Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) ............................................................15,13
Day v. Sebelius, 227 F.R.D. 668 (D. Kan. 2005)...............................................................12, 17, 18
Decker v. United States Department of Labor,
473 F. Supp. 770 (E.D. Wis. 1979)....................................................................................13
Diaz v. S. Drilling Corp., 427 F.2d 1118 (5th Cir. 1970) ..............................................................12
Dimond v. District of Columbia, 792 F.2d 179 (D.C. Cir. 1986) ..................................................16
Donaldson v. United States, 400 U.S. 517 (1971) .........................................................................12
Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) .....................................................7, 8, 11
Ford v. City of Hunstville, 242 F.3d 235 (5th Cir. 2001) ..............................................................10
Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489 (9th Cir. 1995).........................15
Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318 (1980).......................................................16
Grutter v. Bollinger, 188 F.3d 394 (6th Cir. 1999)........................................................................14
Howse v. S/V, 641 F.2d 317 (5th Cir. 1981) ..................................................................................19
In re Lease Oil Antitrust Litig., 570 F.3d 244 (5th Cir. 2009).........................................................7
John Doe No. 1 v. Glickman, 256 F.3d 371 (5th Cir. 2001) ............................................................7
Lewis v Stark, 312 F. Supp. 197 (N.D. Cal. 1978).........................................................................13
Martin v. Travelers Indem. Co., 450 F.2d 542 (5th Cir. 1971)......................................................15
Mich. State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) ....................................................14
Natural Res. Def. Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977) ............................................16
ii
New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co.,
732 F.2d 452 (5th Cir.1984) ..........................................................................................5, 19
Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005) ............................................................................12
Saldano v. Roach, 363 F.3d 545 (5th Cir. 2004) .............................................................................7
Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) ....................................................................7, 15
Sierra Club v. Fed. Emergency Mgmt. Agency,
No. 07-0608, 2008 U.S. Dist. LEXIS 47405 (S.D. Tex. June 11, 2008)...........................16
Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) .......................................................7, 10
Texas E. Transmission Corp., 923 F.2d 410 (5th Cir. 1991).........................................................14
Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) .............................................15, 18
United States v. LULAC, 793 F.2d 636 (5th Cir. 1986).................................................................19
Usery v. Brandel, 87 F.R.D. 670 (W.D. Mich. 1980)....................................................................13
CONSTITUTIONAL PROVISIONS AND STATUTES
8 U.S.C. 1225............................................................................................................................2, 5
8 U.S.C. 1225(a) ...........................................................................................................................8
8 U.S.C. 1225(b)(1) ....................................................................................................................17
8 U.S.C. 1225(b)(1)(A)...............................................................................................................17
8 U.S.C. 1225(b)(1)(A)(iii).........................................................................................................17
8 U.S.C. 1225(b)(2)(A).........................................................................................................16, 17
8 U.S.C. 1225(b)(2)(B)(ii) ..........................................................................................................17
8 C.F.R. 247 a.12(e)....................................................................................................................13
45 C.F.R. 1060 ............................................................................................................................13
Fed. R. Civ. P. 24...........................................................................................................................14
Fed. R. Civ. P. 24(a) ..................................................................................................................6, 14
iii
Fed. R. Civ. P. 24(a)(2)..........................................................................................................6, 7, 14

FED. R. CIV. P. 24(b) ......................................................................................................................18
OTHER AUTHORITIES
3B JAMES WM. MOORE ET AL., MOORES FEDERAL PRACTICE 24.07[4] (2d ed. 1995) .............15
7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE 1904 (3d ed. 2007)...............................................19
7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE 1909 (3d ed. 2007)...............................................16
iv
Proposed Defendant-Intervenors Pamela Resndiz and Carolina Canizalez (Proposed

Individual Defendant-Intervenors), and the University Leadership Initiative (ULI or
Proposed
Organizational
Defendant-Intervenor),
(collectively,
Proposed
Defendant-
Intervenors or Movants), are recipients of relief granted under the challenged action in this
case and hereby respectfully submit the following Brief and Memorandum of Law in Support of
Motion to Intervene as Defendants or in the Alternative, Motion for Leave to Participate as Amici
Curiae.
INTRODUCTION
Procedural Background
Plaintiffs, law enforcement officers of the United States and Immigration and Customs
Enforcement (ICE), filed this action against Defendants Janet Napolitano in her official
capacity as Secretary of Homeland Security, John Morton in his official capacity as Director of
Immigration and Customs Enforcement, and Alejandro Mayorkas in his official capacity as
Director of the United States Citizenship and Immigration Services (collectively, Defendants).1
Plaintiffs seek to halt the enforcement of the June 15, 2012 Memorandum issued by Defendant
Napolitano entitled Exercising Prosecutorial Discretion with Respect to Individuals Who Came
to the United States as Children (the DHS Memorandum or DACA). Dkt. 24 at 24.
The DHS Memorandum states that ICE agents should exercise their [prosecutorial]
discretion, on an individual basis, in order to prevent low priority individuals from being placed
into removal proceedings. Dkt. 15, App. A at 2. The memorandum identifies as low priority
certain young people who were brought to the United States and did not have the intent to violate
1
The State of Mississippi, by and through Governor Phil Bryant, was originally added as a plaintiff, but the Court
dismissed its claims for lack of standing. Dkt. 41 at 32.
U.S. immigration laws at the time of entry. See id. at 2. Specifically, in order to qualify for
relief under DACA, applicants must complete a background check and must: have come to the
United States under the age of sixteen and not be older than thirty; have continuously resided in
the United States for at least five years; have a high school diploma, general education
development certificate (GED), or honorable discharge from the Coast Guard or the Armed
Forces of the United States; and must not have a conviction for a felony, significant
misdemeanor,2 multiple misdemeanor offenses, or otherwise pose a threat to national security or
public safety. Applicants also must have entered without inspection or have expired immigration
status prior to June 15, 2012.3
Plaintiffs seek declaratory relief on six causes of action: (1) the DHS Memorandum
violates 8 U.S.C. 1225 because the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) requires Plaintiffs to initiate removal proceedings when they encounter
illegal immigrants who are not clearly and beyond a doubt entitled to be admitted, and that any
prosecutorial discretion can only be exercised after removal proceedings have been initiated;
(2) the DHS Memorandum violates federal law because it confers deferred action, which is not
authorized by federal law or regulation; (3) the DHS Memorandum violates federal law because
it uses prosecutorial discretion to grant employment authorization to unlawfully present aliens
USCIS has defined the significant misdemeanor category as any offense involving domestic violence, sexual
abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving
under the influence. . . or any offense for which the individual was sentenced to time in custody for more than 90
days. See Consideration of Deferred Action for Childhood Arrivals Process: Frequently Asked Questions,
(DACA FAQ), Nov. 16, 2012, available at
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f73
10VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD.
Instructions for Consideration of Deferred Action for Childhood Arrivals USCIS form I-821D, p.1, available at
http://www.uscis.gov/files/form/i-821d.pdf.
without authorization by federal law;4 (4) the DHS Memorandum violates Article I, Section 1 of
the U.S. Constitution, the allocation of legislative power to Congress; (5) the DHS Memorandum
violates Article II, Section 3 of the U.S. Constitution, which obligates the Executive branch to
take care that laws are faithfully executed; and (6) the DHS Memorandum violates the
Administrative Procedures Act because it confers a benefit without a regulatory implementation.
See Dkt. 15 at 15-24.
On April 8, 2013, the Court heard Plaintiffs Application for Preliminary Injunction and
later found that Plaintiffs are likely to prevail on their first and sixth claims, but deferred ruling
on the preliminary injunction pending further briefing from the parties, due May 6, 2013. See
Dkt. 58 at 1.
Proposed Defendant-Intervenors
Proposed Individual Defendant-Intervenors Pamela Resndiz and Carolina Canizalez are
undocumented immigrants5 who have received deferred action and employment authorization
under the DHS Memorandum. Ex. C at 5; Ex. D at 7. Ms. Resndiz has resided in the
United States since she was nine-years old. Ex. C at 2. She graduated from high school in
Rockwall, Texas and, thereafter, attended the University of Texas at San Antonio (UTSA)
after earning admission. See id. at 3. In 2012, she graduated with a Bachelor of Arts in
Political Science and Latin American Studies. See id. at 4. She currently works as a facilitator,
assisting at-risk students and parents, and resides in Travis County. See id. at 7.
Ms. Canizalez first came to the United States when she was ten-years old. Ex. D at 2.
She grew up in San Antonio, Texas. She graduated from Alamo Heights High School with a 4.0
4
The Court ) dismissed this claim without prejudice because Plaintiffs failed to allege sufficient injury to satisfy
standing as to the issuance of employment authorization. See Dkt. 27 at 26.
5
The term undocumented immigrants is used to describe persons residing in the United States who do not have
authorization by the U.S. government to reside in the United States.
grade point average and later, from UTSA with Honors. See id. at 3, 6. She currently resides
in Bexar County, Texas, and works as a National Coordinator for United We Dream (UWD), a
national, nonpartisan, immigrant youth-led organization that advocates for the dignity and fair
treatment of immigrant youth and families, regardless of immigration status. See id. at 2, 3,
8.
Founded in 2005, ULI is a membership-based association and student organization of
UT-Austin. Ex. D at 4. ULIs mission is to advance the educational attainment and civil rights
of undocumented immigrant youth.
Ex. D at 10.
ULI promotes higher education for
immigrant students; encourages civic participation among undocumented immigrant students in

secondary schools; and conducts outreach at the local, state and national level to address
problems faced by undocumented immigrant students in college. See id. at 11-16.
ULIs membership is comprised of college students currently attending UT-Austin. See
id. ULIs members provide mentorship and support to undocumented immigrant students in
secondary schools.
See id. at 3.
Through these volunteer activities, ULI fulfills its
organizational mission to encourage young, undocumented immigrant students to succeed

academically, graduate from high school, and attend institutions of higher education. See id.
Many undocumented immigrant student members of ULI have either received, or are eligible for,
deferred action under the DHS Memorandum, and require deferred action so that they can
continue to pursue higher education without the threat of deportation interfering with their
studies.
See id. at 18. Moreover, eligible student members rely on income earned through
work authorization in order to be able to afford college. See id. at 19.

Preserving the ability of undocumented immigrant students to pursue higher education is
vital to the organizational mission, goals and objectives of ULI and is critical to ULIs members
ability to attend school. See id. at 16. For this reason, ULI and its members have sponsored
and conducted educational forums and events to provide information to members on the deferred
action application process under the DHS Memorandum. See id.
Movants have a unique interest in the subject matter of this litigation that supports their
intervention. First, they have a personal interest in the continued implementation of the DHS
Memorandum because of the deferred action they receive under the DHS Memorandum.
Second, an injunction would force Proposed Organizational Defendant-Intervenor to expend
additional resources educating members about the effect of the injunction on their applications
for deferred action, and would impair ULIs members ability to achieve higher education and
civic participation. See id. at 20. As long as the DHS Memorandum remains in force, Movants
have the assurance from the federal government that they will not be deported, allowing them to
pursue educational opportunities and support themselves financially with work authorization.
See New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984)
(en banc) (finding that third persons who have an interest in a declaratory judgment action that is
direct, substantial, and legally protectable may be allowed to intervene in a declaratory
judgment action).
Proposed Defendant-Intervenors Requested Relief
As set forth below, Plaintiffs requested injunctive relief, if granted, is impermissibly
overbroad and would substantially impair the interests of Proposed Defendant-Intervenors.
Defendants attorneys cannot adequately represent Proposed Defendant-Intervenors interests
because they represent Defendants employers and, as demonstrated by the April 8 hearing on
Plaintiffs Application for Preliminary Injunction, they have an adverse interest in minimizing
Plaintiffs apparent wrongful enforcement of both 8 U.S.C. 1225 and the DHS Memorandum.
Allowing Movants to participate as intervenors will ensure that their interests are adequately
protected and will provide Movants the opportunity to present and cross-examine witnesses, and
offer other relevant evidence and argument that will assist the Court with rendering a decision in
this important case.
In the alternative, Proposed Defendant-Intervenors seek to participate as amici curiae to
assist the Court by providing the statutory analysis the Court requested but that the parties did
not present in preliminary injunction briefing or during the hearing. Dkt. 58 at 12; 4/8/13 Tr. at
154-55, 197:23-198:20. As amici curiae, Proposed Defendant-Intervenors would expound on
federal immigration law to explain why DACA-eligible individuals like Movants and Movants
members are exempt from 8 U.S.C. 1225(b)(2)(A), and to demonstrate that the DHS
Memorandum does not confer a substantive benefit so as to trigger administrative rulemaking
requirements. See generally Ex. B.
Because Movants meet all the requirements for intervention under Rule 24(a)(2), they
respectfully request that their motion to intervene be granted, or in the alternative, that they be
permitted to participate as amici curiae.
ARGUMENT
I.
INTERVENTION AS OF RIGHT IS WARRANTED

Rule 24(a) states:
On timely motion, the court must permit anyone to intervene who: (1) is given an
unconditional right to intervene by a federal statute; or (2) claims an interest
relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede
the Movants ability to protect its interest, unless existing parties adequately
represent that interest.
Fed. R. Civ. P. 24(a). To intervene as of right under Rule 24(a)(2), an applicant must meet four
requirements: (1) the motion to intervene is timely; (2) the potential intervener asserts an interest
that is related to the basis of the controversy in the underlying case; (3) the disposition of the
case may impair or impede the potential intervenor's ability to protect his interest; and (4) the
existing parties do not adequately represent the potential intervenor's interests. See Saldano v.
Roach, 363 F.3d 545, 551 (5th Cir. 2004).
The Fifth Circuit has construed Rule 24(a) broadly in favor of intervenors. See John Doe
No. 1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001). [T]he inquiry under subsection (a)(2) is a
flexible one, which focuses on the particular facts and circumstances surrounding each
application. Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996). [I]ntervention of
right must be measured by a practical rather than technical yardstick. See id. at 999 (quotation
omitted). Accordingly, courts, as a general matter, allow intervention where no one would be
hurt and greater justice could be attained. Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.
1994) (citing Glickman, 256 F.3d at 375) (internal quotation marks omitted).
A.
Movants Motion to Intervene is Timely.
In determining whether a motion for intervention is timely under Fed. R. Civ. P. 24(a)(2),
the Court should consider: 1) the length of time between the potential intervenor's learning that
its interest is no longer protected by the existing parties and its motion to intervene, (2) the extent
of prejudice to the existing parties from allowing late intervention, (3) the extent of prejudice to
the potential intervenor if the motion is denied, and (4) any unusual circumstances.
See
Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir. 1977); In re Lease Oil Antitrust
Litig., 570 F.3d 244, 247-48 (5th Cir. 2009).
The length of time from which timeliness is defined is broad and not exact or precisely
measureable. See Stallworth, 558 F.2d at 263 (quotation omitted). Timeliness is favored when a
motion is filed prior to entry of judgment as most . . . case law rejecting petitions for
intervention as untimely concern motions filed after a judgment is rendered. Edwards, 78 F.3d
at 1001.
The timeliness clock runs. . . from the time [Movants] became aware that [their]
interests would no longer be protected by the existing parties to the lawsuit. Edwards, 78 F.3d
at 1000 (quotations and citations omitted).
As Defendant Napolitano issued the DHS
Memorandum, Movants had no reason to doubt that Defendants would fully protect their
interests under the Memorandum when Plaintiffs filed this lawsuit in August of 2012. The
earliest date that Movants could have known that their interests would not be protected by
existing parties was April 8, 2013, the date of the preliminary injunction hearing. During the
hearing, Plaintiffs counsel frequently elicited testimony, without objection from Defendants
counsel, from all three witnesses that was misleading and/or incorrect, speculative, lacked
foundation, or constituted hearsay. For example, Plaintiffs witnesses consistently inferred that
the DHS Memorandum only applies to individuals who have not been admitted, and therefore,
all DACA-eligible individuals trigger 8 U.S.C. 1225(a). This is incorrect. Not all DACAeligible applicants arrived in the United States without lawful admission.6 Without counter
testimony or evidence, however, the Court had little choice but to accept Plaintiffs
interpretation. Dkt. 58 at 10 (By the Directives terms, any Directive-eligible alien would be
one who has not been admitted and is therefore deemed an applicant for admission for
purposes of Section 1225.).
Eligible applicants may have entered without inspection or have expired immigration status prior to June 15, 2012.
Instructions for Consideration of Deferred Action for Childhood Arrivals USCIS form I-821D, Ex. F at 1. For
example, Proposed Defendant-Intervenor Canizalez overstayed a validly-issued visa and was previously inspected
upon arrival. Ex. D at 2. Before the DHS Memorandum, had Plaintiffs encountered her, she would not have been
an applicant for admission under 8 U.S.C. 1225(a), because she was admitted.
As another example, Plaintiff Martin testified that all immigrant detainees in El Paso are
now training each other to assert DACA in the jails and detention centers where they are
being held. 4/8/13 Tr. at 50-51. He stated that when a detainee volunteers that they are eligible
for Dream Act, enforcement officers continue asking eligibility questions. 4/8/13 Tr. at 50:1420. He further testified that even if an individual is dangerous, he has to release him out to the
street. 4/8/13 Tr. at 51:9-10.7 The DHS Memorandum states explicitly that Plaintiffs should
not consider an individual for an exercise of prosecutorial discretion if he poses a threat to
public safety. Dkt. 15, App. A at 1. Movants could not have anticipated that Defendants, who
are federal government officials, would fail to present government witnesses to counter
Plaintiffs testimony about their apparent wrongful enforcement of the DHS Memorandum, and
who could explain the proper implementation of the DHS Memorandum on the ground.
Similarly, Movants could not have anticipated that Plaintiffs were raising an as applied
challenge to the DHS Memorandum, because they did not plead an as applied claim in their
Amended Complaint.
Even if the Court finds that the parties briefing provided reasonable notice to Movants,
the earliest that Movants could have known that Defendants were not protecting their interests
was December 19, 2012, the date Defendants filed their Response to Plaintiffs Application for
Preliminary Injunction. (Dkt. 34). The Fifth Circuit has found that a five-month lapse is not
unreasonable. See Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318, 320-21
(5th Cir. 1986).8
7
Plaintiff Martin also estimated that a quarter of the detainees he intakes are released because of DACA. See 4/8/13
Tr. at 52:15-19. This testimony lacked foundation and came from an enforcement agent who could not possibly
have had access to those numbers, especially based on previous testimony from Plaintiff Crane that all offices are
deleting records of individuals released. Id. at 97-98.
8
Proposed Defendant-Intervenors ordered a transcript of the hearing on April 9, 2013, and received the hearing
transcript on April 29, 2013, less than a week from the date of this filing.
Regarding the second timeliness factor, Movants intervention will not cause prejudice to
the existing parties. See Ford v. City of Hunstville, 242 F.3d 235, 240 (5th Cir. 2001) (finding
that prejudice is only created by the intervenors delay in seeking to intervene after it learns of
its interest) (citing Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992)); see also
Stallworth, 558 F.2d at 265 ([T]he prejudice to the original parties to the litigation that is
relevant to the question of timeliness is only that prejudice which would result from the wouldbe intervenors failure to request intervention as soon as he knew or reasonably should have
known about his interest in the action). As stated above, Intervenors only recently learned of
how their interest is not being protected. And although the Court has conducted the preliminary
injunction hearing, the Court has not entered its final ruling on the matter nor its Scheduling
Order in this case, and the parties have not conducted any discovery or depositions. Neither
Plaintiffs nor Defendants would be prejudiced by the timing of Movants intervention.
On the other hand, Movant and its members would be severely prejudiced if this Court
denies this motion to intervene. In Stallworth, the Fifth Circuit framed the question of prejudice
against proposed intervenors who are denied intervention in terms of whether a [Rule 24]
section (a) intervenor may be seriously harmed if he is not permitted to intervene. 558 F.2d at
266 (quotation ommitted).
In this case, distinct from Defendants, Movants and Movants
members, as undocumented immigrants, have a direct, personal (and financial) stake in the
outcome of this case. The Court indicated that it is inclined to grant Plaintiffs requested
injunctive relief and enjoin the enforcement and implementation of the DHS Memorandum in its
entirety. Dkt. 58 at 1. If the Court enjoins the implementation of the DHS Memorandum,
Proposed Individual Defendant-Intervenors will fall out of deferred action status and will lose
work authorization, which will in turn risk their employment.
10
Proposed Organizational
Defendant-Intervenors members will similarly not be eligible for deferred action or work
authorization, and will lose the opportunity for financial support from work authorization. In
addition, Organizational Defendant-Intervenors education efforts and mentoring work with
undocumented immigrant students in secondary schools will be profoundly affected by having to
shift limited resources to address this substantial change in practice.
As nonparties, Movants will be affected by any court-ordered remedy, but will not be
able to participate in presenting evidence and argument in support of their defenses or to appeal
the ruling. See Edwards, 78 F.3d at 100203; see also Lease Oil Antitrust Litig., 570 F.3d at
24950 (Intervening in the existing federal lawsuit is the most efficient, and most certain, way
for [the potential intervenor] to pursue its claim.). Without the ability to intervene, Movants
will be relegated to the sidelines in a case in which their interests will be represented and
determined by other parties.
As the targets of Plaintiffs lawsuit, Movants members respectfully urge the Court to
grant them an opportunity to present their case and protect their interests as undocumented
immigrants. Considering each of the factors above, Movants intervention is timely because: (1)
Movant promptly filed this motion; (2) the existing parties will not be prejudiced if the Court
permits intervention at this juncture; and (3) Movants members will be greatly harmed if this
motion is denied because they will not be able to protect their interests before the Court.
B.
Movants Seek to Vindicate a Protectable Interest
Movants also satisfy the requirements of Rule 24(a)(2) because they have a protectable
interest in the subject matter of this litigation that would be otherwise impaired by an adverse
decision. Movants protected interest does not have to be of a legal nature identical to that of
the claims asserted in the main action. Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.
11
1970). Indeed, [a]ll that is required by the terms of the rule is an interest in . . . [the] rights that
are at issue, provided the other elements of intervention are present. Id.; see also Donaldson v.
United States, 400 U.S. 517, 531 (1971) (holding that Rule 24(a)(2) requires only a significant
protectable interest). Ultimately, the interest test is primarily a practical guide to disposing
of lawsuits by involving as many apparently concerned persons as is compatible with efficiency
and due process. Ross v. Marshall, 426 F.3d 745, 757 (5th Cir. 2005).
Here, Proposed Individual Defendant-Intervenors interest is to maintain their deferred
action status and work authorization, and the opportunity to reapply for deferred action in two
years, which Movants would not otherwise have without the implementation of the DHS
Memorandum. Proposed Organizational Defendant-Intervenor seeks the same for its members,
as well as the ability to apply for deferred action for its members who have not yet applied.
Movants interest is therefore sufficient under Diaz.
Courts have routinely granted intervention to parties seeking to protect their interests in
government programs that affect them. For example, in Kansas, a federal district court allowed
students and Latino organizations to intervene in a case concerning a challenge to state
legislation that made undocumented immigrant students eligible for in-state tuition rates. See
Day v. Sebelius, 227 F.R.D. 668, 670 (D. Kan. 2005) (granting motion to intervene as defendants
filed by the Kansas League of United Latin American Citizens, the Hispanic American
Leadership Organization, and three college students). Similar to Day, where the proposed
intervenors accessed college in-state tuition rates pursuant to a state law challenged by the
plaintiffs, see id. at 673, Proposed Individual Defendant-Intervenors and Proposed
Organizational Defendant-Intervenor members are current undocumented immigrant students
who have a direct stake in the opportunity to apply for deferred action and work authorization
12
under the DHS Memorandum. See also Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir.
1989) (detainees seeking to intervene as a matter of right in an action brought by a U.S. Senator
to challenge housing of alien felons at a particular facility had an interest relating to the main
suit).
Similarly, courts have held that persons affected by government programs had sufficient
interest in the action to meet the interest prerequisite for intervention. For example, in Lewis v
Stark, 312 F. Supp. 197 (N.D. Cal. 1978), revd on other grounds 397 US 552 (1980), the
plaintiffs sought a declaration that the state welfare law, which provided that a man assuming the
role of spouse in a home is bound to support children in the home, was unconstitutional and
contrary to federal regulations interpreting the Social Security Act. Id. at 199. The court held
that families with men assuming the role of spouse in the household were entitled to intervene as
of right under Rule 24(a). Id. In the same way, Movants here have shown strong and legally
cognizable interests related to the DHS Memorandum.
Furthermore, Movants stand to lose economic opportunities if the Court grants Plaintiffs
request, because they would no longer have access to work authorization. In order to receive
work authorization, Movants had to demonstrate economic necessity by submitting an
application for employment authorization listing his or her assets, income, and expenses as
evidence of his or her need to work. 8 C.F.R. 247 a.12(e); 45 C.F.R. 1060. Courts have
held that economic interests, especially those that would afford [movants] greater recompense
and satisfaction, are a significant protectable interest. Usery v. Brandel, 87 F.R.D. 670, 676
(W.D. Mich. 1980); see also Decker v. United States Department of Labor, 473 F. Supp. 770
(E.D. Wis. 1979) (holding that a city archdiocese which received financial benefits from a
federal statute had a sufficient interest in the action to intervene as of right under Rule 24(a)(2)).
13
Movants interests diverge from the broader interests that Defendants pursue:
Defendants are responsible for issuing and implementing the DHS Memorandum, but none of the
existing Defendants are or ever will be directly affected by the DHS Memorandum. Instead,
their interest in the DHS Memorandum is to ensure that [DHSs] enforcement resources are not
expended on [] low priority cases but are instead appropriately focused on people who meet our
enforcement priorities. Dkt. 1 at 23. Therefore, Movants ask the Court to provide them the
opportunity to defend their own interests under the DHS Memorandum.
C.
Movants Interests Would be Impaired if Intervention Were Denied.
Movants are so situated that the disposition of the action may as a practical matter
impair or impede [its] ability to protect [its] interest. Fed. R. Civ. P. 24(a)(2); Texas E.
Transmission Corp., 923 F.2d 410, 413 (5th Cir. 1991). Here, the advisory committee notes to
Rule 24(a) are instructive: [i]f an absentee would be substantially affected in a practical sense
by the determination made in an action, he should, as a general rule, be entitled to intervene.
Fed. R. Civ. P. 24 advisory committees note to 1966 Amendment.
To demonstrate
impairment, a prospective intervenor must show only that impairment of its substantial legal
interest is possible if intervention is denied. Grutter v. Bollinger, 188 F.3d 394, 399 (6th Cir.
1999) (citing Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997)) (emphasis
added). This burden is minimal. See Grutter, 188 F.3d at 399 (rejecting the notion that Rule
24(a)(2) requires a specific legal or equitable interest).
There is no doubt that the relief Plaintiffs seek in this case barring undocumented
immigrant youth from the opportunity to apply for deferred action status and work authorization
that they would not otherwise have access to will effectively impair access to higher education
14
and employment for Movants and Movants members, in addition to disrupting their current
college studies.
Movants should not be required to wait until the conclusion of the litigation to vindicate
their interests. Courts have recognized that parties seeking intervention would face a practical
disadvantage in asserting their rights once a court has rendered a decision. Chiles, 865 F.2d at
1214. The Fifth Circuit has recognized that a prospective intervenors interest may be practically
impaired by the stare decisis effect of a courts rulings in subsequent proceedings. Sierra
Club, 18 F.3d at 1207 (quoting Ceres Gulf, 957 F.2d at 1204) (italics in original); see also
Martin v. Travelers Indem. Co., 450 F.2d 542, 554 (5th Cir. 1971) ([S]tare decisis . . . would
loom large in any attempt by prospective intervenors to achieve a favorable resolution of the
coverage issue on their own.); Black Fire Fighters Assn of Dallas v. City of Dallas, 19 F.3d
992, 994 (5th Cir. 1994) (to the extent that a lawsuit involves common legal issues, potential
adverse effects on the prospective intervenors favor intervention).
Therefore, Movants
respectfully request that the Court grant their motion for intervention at the earliest time possible
in order to protect their direct and substantial interests.
D.
The Existing Defendants Will Not Adequately Represent Movants Interests
The burden under this prong is satisfied if Movant shows that representation of his
interest may be inadequate; and the burden of making that showing should be treated as
minimal. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). Courts
have recognized that [i]nadequate representation is most likely to be found when the applicant
asserts a personal interest that does not belong to the general public. Forest Conservation
Council v. U.S. Forest Serv., 66 F.3d 1489, 1498 (9th Cir. 1995) (quoting 3B JAMES WM. MOORE
ET AL., MOORES FEDERAL PRACTICE 24.07[4] (2d ed. 1995)). Intervention is warranted when
15
the proposed intervenors occup[y] a different position and [have] different interests than the
existing defendants. Sierra Club v. Fed. Emergency Mgmt. Agency, No. 07-0608, 2008 U.S.
Dist. LEXIS 47405, at *18-19 (S.D. Tex. June 11, 2008).
Courts have recognized that governmental representation of private, non-governmental
intervenors may be inadequate. For example, in Dimond v. District of Columbia, the court held
that because the government was responsible for representing a broad range of public interests
rather than the more narrow interests of intervenors, the application for intervention . . . falls
squarely within the relatively large class of cases in this circuit recognizing the inadequacy of
governmental representation of the interests of private parties in certain circumstances. 792
F.2d 179, 192 (D.C. Cir. 1986); see Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 331
(1980) (granting individual aggrieved partys motion to intervene in order to protect its personal
interests, which may at times be in conflict with those of the EEOC); see also Natural Res. Def.
Council v. Costle, 561 F.2d 904, 910-911 (D.C. Cir. 1977) (holding that the government does not
adequately represent private organizations because intervenors interests are different). Finally,
the burden is on those opposing the intervention to show that representation of Movants
personal interests will be sufficient. See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE 1909 (3d ed. 2007).
In this case, the different interests of Movants and Defendants demonstrate the need for
Movants participation. First, Defendants are Plaintiffs employers and have an interest in
protecting the image of their agencies and the competency of their employees. As shown, supra,
Plaintiff witnesses at the April 8 hearing indicated that they received instructions from
unidentified superiors to exercise favorable discretion and release detainees who posed a threat
to public safety, in direct contravention of the DHS Memorandum. See also 4/8/13 Tr. at 12. In
16
addition, Plaintiff witnesses intimated that but for the DHS Memorandum, they would issue
Notices to Appear (NTAs) to DACA-eligible detainees under Section 1225, and in fact did so
routinely before receiving the Memorandum. See, e.g., 4/8/13 Tr. at 27:17-25. Such acts
actually violate Section 1225, however, because any detainee who is eligible for DACA would
also be eligible for an exemption under 8 U.S.C. 1225(b)(2)(A).9 If these officers are acting on
instructions they receive from their superiors, Defendants have an incentive not to offer evidence
in order to avoid impeaching their own officers and/or tarnishing the image of the competency of
their offices.
In addition, if Plaintiffs are successful and obtain an injunction, Defendants will not
experience the severe and direct negative financial consequences, as well as living in constant
fear each day of being deported, imposed on Proposed Individual Defendant-Intervenors and
Organizational Defendant-Intervenors members. Defendants, on the other hand, have no direct
personal interest at stake. See, e.g., Day, 227 F.R.D. at 674 (To the courts knowledge, none of
these existing defendants are or ever will be personally impacted by [the in-state tuition law].).
Instead, Defendants will be merely required not to implement the DHS Memorandum.
Defendants objectives and interests in the outcome of this case simply do not match Movants
personal interest in defending and maintaining the DHS Memorandum.
The statutory section at issue includes an exception at 8 U.S.C. 1225(b)(2)(B)(ii), providing that it is inapplicable
to a person to whom 8 U.S.C. 1225(b)(1) applies. In turn, 8 U.S.C. 1225(b)(1) exempts from the description of
persons who shall be detained as persons who establish to the satisfaction of the immigration officer, that. . .[s/he]
has been physically present in the United States continuously for the 2-year period immediately prior to the
officers determination of inadmissibility under [8 U.S.C. 1225(b)(1)(A)]. 8 U.S.C. 1225(b)(1)(A)(iii). Under
this subsection, an ICE officer who is targeting a detainee must allow the detainee an opportunity to demonstrate the
requisite two years of continuous presence that would exempt them from enforcement of the statute. To qualify for
favorable discretion under DACA, an applicant must show that s/he has continuously resided in the United States for
at least five years preceding the date of the DACA directive. Accordingly, Plaintiffs will not suffer negative
employment consequences for refraining from initiating proceedings against DACA-eligible detainees under Section
1225, because those individuals are automatically exempted. Ironically, Plaintiffs are requesting an injunction so
that they can violate federal law, not comply with it.
17
Furthermore, Movants request intervention because they would bear the greatest cost
under a favorable ruling for Plaintiffs. An unfavorable decision may certainly upset some of
Defendants stated objectives, but it would also alleviate some of the political pressures.10 Even
assuming Defendants best intentions, they may be hesitant to advance relevant arguments for
access to better opportunities for undocumented immigrants because it would expose them to
severe public scrutiny and criticism.
Defendants potential and actual failure to advance certain arguments is sufficient to
satisfy Movants minimal burden that Defendants representation may be inadequate.
Trbovich, 404 U.S. at 538 n.10. Movants interests are too divergent from the interests of
Defendants, and too vital for Movants, to be denied an active role as intervenor. See Day, 227
F.R.D. at 674 (granting intervention and recognizing direct and personal interests of
undocumented immigrant student in defending an in-state tuition law).
For these reasons,
Movants seek to participate in this case as intervenors and respectfully request that the Court
grant them intervention as a matter of right.
II.
MOVANTS ARE ENTITLED TO PERMISSIVE INTERVENTION.

Should the Court determine that Movants are not entitled to intervene as a matter of right,
Movants urge the Court to exercise its broad discretion and allow intervention under FED. R. CIV.
P. Rule 24(b). Under Rule 24(b):
10
Some have criticized the Obama Administration for DACA, calling it amnesty, a backdoor DREAM Act, and
an attempt to pander to the Latino community. See, e.g., Federation for American Immigration Reform (FAIR),
Number of Backdoor Amnesty Beneficiaries Grows Drastically as Administration Rushes Application Process (Oct.
15, 2012), available at http://www.fairus.org/legislative-updates/fair-legislative-update-october-15-2012;
SmashPipe, Nightly News with David Jones, Yet Another Obama Deception (March 29, 2013), available at
http://news.smashpipe.com/?f=AbNPG0yHgOE#play/AbNPG0yHgOE (portraying DACA as deception and
amnesty program); NumberUSA, Over 50,000 Illegal Aliens Received Amnesty, Work Permits under Obama's
DACA Program (Nov. 29, 2012), available at https://www.numbersusa.com/content/news/november-19-2012/over50000-illegal-aliens-received-amnesty-work-permits-under-obamas-daca-prog (portraying DACA as an amnesty
program).
18
On timely application, the court may permit anyone to intervene

who: (A) is given a conditional right to intervene by a federal
statute; or (B) has a claim or defense that shares with the main
action a common question of law or fact. . . (3) In exercising its
discretion, the court must consider whether the intervention will
unduly delay or prejudice the adjudication of the original parties
rights.
Rule 24(b). Similar to the burden under Rule 24(a), permissive intervention is to be granted
liberally under Rule 24(b). See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE
AND
PROCEDURE 1904 (3d ed. 2007).
Permissive intervention is wholly
discretionary with the court . . . even though there is a common question of law or fact, or the
requirements of Rule 24(b) are otherwise satisfied. New Orleans Pub. Serv., 732 F.2d at 470471 (internal quotation marks and citation omitted). The Fifth Circuit has recognized that
permissive intervention may be granted in the Courts discretion if: (1) the motion is timely; (2)
an applicants claim or defense has a question of law or fact in common with the existing action;
and (3) intervention will not delay or prejudice the adjudication of the rights of the original
parties.
See Howse v. S/V, 641 F.2d 317, 320 n.4 (5th Cir. 1981); see also United States v.
LULAC, 793 F.2d 636, 644 (5th Cir. 1986) (Although the court erred in granting intervention as
of right, it might have granted permissive intervention under Rule 24(b) because the intervenors
raise common questions of law and fact.).
As a threshold matter, Movants motion to intervene is timely. See supra Section I.A.
Second, Movants defenses will share substantial questions of law and fact with the main action:
Movants seek to preserve access to the opportunity to apply for deferred action and work
authorization under the DHS Memorandum. Third, as discussed above, intervention will not
create delay or prejudice the existing parties. See id. Adding Movants as defendant-intervenors
19
at this juncture of the lawsuit will not needlessly increase cost, delay disposition of the litigation,
or prejudice the existing parties.
Importantly, Movants participation in this lawsuit will offer evidence from the
perspective of undocumented immigrants, who are the real targets of this lawsuit and who have a
direct and personal stake in the outcome of this case. At a minimum, therefore, Movants ask the
Court to exercise its broad discretion and grant them permissive intervention.
III.
MOVANTS ARE ENTITLED TO PARTICIPATE AS AMICUS CURIAE.

If the Court does not allow Movants to intervene, they respectfully request leave to
participate as amicus curiae in order to file the amicus brief attached as Exhibit B and to
participate as amici throughout the remainder of this case. For the specific reasons set forth
supra, Part I, Movants have a vested interest in the outcome of this case under Local Rule 7.2.
CONCLUSION
For the foregoing reasons, Movants respectfully request that this Court grant their motion
to intervene, or in the alternative, grant them leave to participate as amicus curiae.
Dated: May 6, 2013
Marisa Bono
David G. Hinojosa
Nina Perales
Telephone: (210) 224-5476
Telecopier: (210) 224-5382
20

3301 Elm St.
Dallas, TX 75226
Telephone: (214) 939-9222
Telecopier: (214) 939-9229
21

DALLAS DIVISION
Plaintiffs,
v.
Defendants,
and
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Civil Action No.

3:12CV32470
APPENDIX TO PROPOSED DEFENDANT-INTERVENORS

BRIEF AND MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO INTERVENE AS DEFENDANTS OR IN THE ALTERNATIVE,
MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE
In compliance with Local Civil Rule 7.1(i), Plaintiffs submit this Appendix to
Reyes Plaintiffs Supplemental Response to Standing Arguments Raised by Defendant.
DESCRIPTION
PAGE NO.
Exhibit A - Defendant-Intervenors Answer to Amended Complaint

and Affirmative Defenses
Appx. 001-017
DESCRIPTION
PAGE NO.
Exhibit B - Brief of Pamela Resndiz, Carolina Canizalez, and the

University Leadership Initiative as Amici Curiae in Support of
Defendants
Appx. 018-039
Exhibit C - Declaration of Pamela Resndiz
Appx. 040-044
Exhibit D - Declaration of Carolina Canizalez
Appx. 045-049
Exhibit E - Declaration of Juana Guzman
Appx. 050-055
Exhibit F - I-821D, Consideration of Deferred Action for Childhood

Arrivals
Appx. 056-062
Dated: May 6, 2013
Marisa Bono
David G. Hinojosa
Nina Perales
Telephone: (210) 224-5476
Telecopier: (210) 224-5382
3301 Elm St.
Dallas, TX 75226
Telephone: (214) 939-9222
Telecopier: (214) 939-9229
Attorneys for Proposed DefendantIntervenors
I hereby certify that on May 6, 2013, I electronically filed the foregoing with the
Clerk of court by using the CM/ECF system which will send a notice of electronic filing
to counsel of record who are registered participants of the Courts CM/ECF system. I
further certify that I mailed the foregoing document and the notice of electronic filing by
first-class mail to counsel of record who are not CM/ECF participants as indicated in the
notice of electronic filing.
EXHIBIT A
APPX.001

DALLAS DIVISION

Plaintiffs,
v.
Defendants,
and
Defendant-Intervenors.
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Civil Action No.

3:12-CV-3247-0
DEFENDANT-INTERVENORS
ANSWER TO AMENDED COMPLAINT
AND AFFIRMATIVE DEFENSES
Pamela Resndiz and Carolina Canizalez ( Individual Defendant-Intervenors), and the
University Leadership Initiative (ULI or Organizational Defendant-Intervenor) (collectively,
APPX.002
Defendant-Intervenors) by their undersigned counsel, hereby answer each of the numbered

paragraphs of the Amended Complaint filed by Plaintiffs in the above-styled action as follows:
ORIGINAL ANSWER
INTRODUCTION
1.
Defendant-Intervenors lack knowledge or information sufficient to form a belief
about the truth of the allegations in paragraph 1.

2.
Defendant-Intervenors deny that Appendix A attached to Plaintiffs Amended
Complaint is a Directive, but otherwise admit the allegations in the first sentence of paragraph 2.
Defendant-Intervenors deny the allegations in the second and third sentences of paragraph 2.
3.
Defendant-Intervenors admit the allegations in paragraph 3, but only to the extent
that the requirements listed by Plaintiffs are only some of the criteria that should be satisfied
before an individual is considered for prosecutorial discretion. Defendant-Intervenors deny the
allegation in paragraph 3 that unlawfully present aliens are granted privileges under the
Directive.
4.
Defendant-Intervenors deny the allegation in paragraph 4.
5.
Defendant-Intervenors admit the allegation in paragraph 5 only to the extent that
Plaintiffs bring this civil action and seek injunctive relief. Defendant-Intervenors deny that
Plaintiffs are entitled to relief, and that the implementation of Appendix A attached to Plaintiffs
Amended Complaint is unlawful and unconstitutional.
6.
Defendant-Intervenors deny the allegations set forth in paragraph 6.
7.
8.
APPX.003
THE PARTIES
Plaintiffs
9.
Defendant-Intervenors admit that ICE
Deportation Officers are authorized by law to arrest aliens for administrative immigration
violations or for any criminal offense against the United States and execute administrative and
criminal arrest warrants.
10.
Immigration Enforcement Agents are authorized by law to arrest aliens for administrative
immigration violations, arrest any persons for felonies regulating the admission or removal of
aliens, and execute administrative arrest warrants.
11.
12.
APPX.004
13.
14.
15.
16.
17.
APPX.005
18.
Deportation Officers are authorized by law to arrest aliens for administrative immigration
violations or for any criminal offense against the United States and execute administrative and
criminal arrest warrants.
19.
Defendant-Intervenors admit the allegations set forth in paragraph 19.
20.

21.

Defendants
22.
Defendant-Intervenors admit the allegation in paragraph 22.
23.
Defendant-Intervenors admit the allegation in paragraph 23.
24.
Defendant-Intervenors admit the allegation in the first sentence of paragraph 24.
Defendant-Intervenors lack knowledge or information sufficient to form a belief about the truth
of the allegations in the second sentence of paragraph 24.
25.
Complaint was a Directive, but otherwise admit the allegations in paragraph 25.
JURISDICTION AND VENUE
26.
27.
APPX.006
THE DIRECTIVE AND RELATED EVENTS

28.
29.
Complaint was a Directive, but otherwise admit the allegations in paragraph 29.
30.
Complaint is a Directive, but otherwise admit the allegations in paragraph 30.

31.
Complaint is a Directive, or that it confers benefits. Defendant-Intervenors otherwise admit the

allegations in paragraph 31.
32.
Complaint is a Directive, or that it confers benefits. Defendant-Intervenors admit the remaining

allegation in paragraph 32 to the extent that DHS began receiving applications for deferred
action and work authorization in relation to Appendix A attached to Plaintiffs Amended
Complaint on August 15, 2012.
33.
Complaint is a Directive, or that it confers benefits. Defendant-Intervenors lack knowledge or

information sufficient to form a belief about the truth of the allegations in the first sentence of
paragraph 33. Defendant-Intervenors deny the allegations set forth in paragraph 33.
34.
Complaint is a Directive.
Defendant-Intervenors otherwise lack knowledge or information
sufficient to form a belief about the truth of the allegations in paragraph 34.
35.
APPX.007
36.
Defendant-Intervenors admit the allegations in paragraph 36 to the extent that the
Department of Homeland Security has published estimates of unauthorized immigrants residing

in the United States on its website and otherwise deny the allegations.
FEDERAL STATUTORY BACKGROUND
37.
Defendant-Intervenors admit that H.R. Rep. 104-725 (1996), at 383 states
[I]mmigration law enforcement is as high a priority as other aspects of Federal law

enforcement, and illegal aliens do not have the right to remain in the United States undetected
and unapprehended.
Defendant-Intervenors otherwise deny the rest of the allegations in
paragraph 37.
38.
Defendant-Intervenors admit the allegations in paragraph 38.
39.
40.
Defendant-Intervenors admit that 8 U.S.C. 1225(b)(2)(A) states that [s]ubject
to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the
examining immigration officer determines that an alien seeking admission is not clearly and
beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section
1229a of this title. Defendant-Intervenors otherwise the allegations set forth in paragraph 49.
41.
Defendant-Intervenors deny the allegations in the first and second sentences of
paragraph 41. Defendant-Intervenors deny that Appendix A attached to Plaintiffs Amended

Complaint is a Directive. Defendant-Intervenors lack knowledge or information sufficient to
form a belief about the truth of the remaining allegations in paragraph 41.
42.
Defendant-Intervenors deny the allegations in paragraph 42.
43.
44.
APPX.008
45.
46.

HARM
47.

48.
Complaint is a Directive or that it causes ICE Immigration Enforcement Agents and Deportation
Officers to violate their oath of office and United States laws. Defendant-Intervenors lack
knowledge or information sufficient to form a belief about the truth of the remaining allegations
in paragraph 48.
49.

50.

51.

52.

APPX.009
53.
Defendant-Intervenors deny that the Morton Memorandum is contrary to federal
law. Defendant-Intervenors lack knowledge or information sufficient to form a belief about the
truth of the remaining allegations in paragraph 53.
54.

55.

56.

57.

58.
59.

60.

61.

62.
APPX.010
63.

64.

65.

66.

FIRST CAUSE OF ACTION
THE DIRECTIVE EXPRESSLY VIOLATES FEDERAL STATUTES
REQUIRING THE INITIATION OF REMOVAL
67.
Defendant-Intervenors admit that Plaintiffs reallege, adopt, and incorporate by
reference their previous allegations in paragraph 67.

68.
Defendant-Intervenors admit that Plaintiffs quote portions of 8 U.S.C.
1225(a)(1), 1225(a)(3), and 1225(b)(2)(A), and that 8 U.S.C 1229a refers to removal
proceedings in United States Immigration Courts. Defendant-Intervenors deny the remaining
allegations in paragraph 68.
69.
70.
71.
72.
73.
Defendant-Intervenors admit that Plaintiffs seek declaratory and injunctive relief,
but otherwise deny the allegations in paragraph 73.
10
APPX.011
SECOND CAUSE OF ACTION

THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING A
NON-STATUTORY FORM OF BENEFIT, DEFERRED ACTION, TO
MORE THAN 1.7 MILLION ALIENS, RATHER THAN A FORM OF RELIEF
OR BENEFIT THAT FEDERAL LAW PERMITS ON SUCH A LARGE SCALE
74.
reference their previous allegations.

75.
76.
77.
78.
79.
80.

THIRD CAUSE OF ACTION
THE DIRECTIVE VIOLATES FEDERAL LAW BY CONFERRING THE
LEGAL BENEFIT OF EMPLOYMENT AUTHORIZATION WITHOUT
ANY STATUTORY BASIS AND UNDER THE FALSE PRETENSE OF
PROSECUTORIAL DISCRETION
81.

82.
83.
84.
85.
Defendant-Intervenors admit that the Morton Memorandum lists a broad,
nonexclusive range of discretionary enforcement decisions where prosecutorial discretion may

apply in the civil immigration enforcement context and that the Memorandum does not
11
APPX.012
specifically mention the term employment authorization. Defendant-Intervenors deny the

remaining allegations in paragraph 85.
86.
Defendant-Intervenors admit that prosecutorial discretion is permitted by federal
immigration law, and that it allows ICE to seek the cancellation or withholding of removal.
Defendant-Intervenors deny the remaining allegations in paragraph 86.
87.
88.
89.
90.
91.

FOURTH CAUSE OF ACTION
THE DIRECTIVE VIOLATES THE CONSTITUTIONAL ALLOCATION
OF LEGISLATIVE POWER TO CONGRESS
92.

93.
94.

95.
96.
97.
98.
99.
12
APPX.013
100.

101.
102.
103.
104.

FIFTH CAUSE OF ACTION
THE DIRECTIVE VIOLATES THE ARTICLE II, SECTION 3,
CONSTITUTIONAL OBLIGATION OF THE EXECUTIVE TO TAKE
CARE THAT THE LAWS ARE FAITHFULLY EXECUTED.
105.

106.
107.
108.
109.

SIXTH CAUSE OF ACTION
THE DIRECTIVE VIOLATES THE ADMINISTRATIVE PROCEDURE
ACT THROUGH CONFERRAL OF A BENEFIT WITHOUT
REGULATORY IMPLEMENTATION
110.
13
APPX.014
111.
Defendant-Intervenors admit that the Administrative Procedures Act governs the
way U.S. federal agencies create the regulations they enforce. Defendant-Intervenors otherwise
deny the allegations set forth in paragraph 111.
112.
113.
114.
115.
116.

PRAYER FOR RELIEF
104.
Defendant-Intervenors deny that the Plaintiffs are entitled to the relief set out in
the Prayer.
AFFIRMATIVE DEFENSES
Defendant-Intervenors assert the following affirmative defenses:
FIRST AFFIRMATIVE DEFENSE
The Amended Complaint fails to state a claim upon which relief can be granted pursuant
to Fed. R. Civ. P. 12(b)(6), because, among other reasons, Defendants have failed to allege facts
and indeed cannot allege facts - supporting their claims that the DHS Memorandum is
unconstitutional and that its promulgation is unlawful under the Administrative Procedures Act.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs lack standing pursuant to Fed. R. Civ. P. 12(b)(1). Plaintiffs, among other
reasons, have not pled an injury fairly traceable to Defendants conduct and redressable by a
14
APPX.015
favorable decision from the Court. Therefore, the Court therefore does not have jurisdiction over
their claims.
THIRD AFFIRMATIVE DEFENSE
Plaintiffs cannot establish an actual case or controversy and therefore, the Court therefore
does not have jurisdiction over their claims.
FOURTH AFFIRMATIVE DEFENSE
Defendants constitutional claims are barred by sovereign immunity.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs claims are barred by collateral estoppel as federal courts have already ruled on
the enforcement authority of Defendants.
Dated: May 6, 2013
Marisa Bono
David G. Hinojosa
Nina Perales
Telephone: (210) 224-5476
Telecopier: (210) 224-5382
15
APPX.016

3301 Elm St.
Dallas, TX 75226
Telephone: (214) 939-9222
Telecopier: (214) 939-9229
Attorneys for Defendant-Intervenors
16
APPX.017
EXHIBIT B
APPX.018

DALLAS DIVISION

Plaintiffs,
v.
Defendants.
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Civil Action No.

3:12-CV-3247-0
BRIEF OF PAMELA RESNDIZ, CAROLINA CANIZALEZ, AND

THE UNIVERSITY LEADERSHIP INITIATIVE
AS AMICI CURIAE IN SUPPORT OF DEFENDANTS
APPX.019
TABLE OF CONTENTS
INRODUCTION AND SUMMARY OF ARGUMENT.............................................................2

ARGUMENT ..................................................................................................................................3
I.
PLAINTIFFS CANNOT SHOW INJURY-IN-FACT

BECAUSE DACA-ELIGIBLE INDIVIDUALS ARE EXEMPT
FROM 8 U.S.C. 1225(B)(2)(A).......................................................................................3
II.
PLAINTIFFS MISINTERPRET THE GUIDANCE SET FORTH IN THE DHS

MEMORANDUM AND DO NOT IMPLEMENT IT CORRECTLY..........................5
III.
PLAINTIFFS SEEK DECLARATORY AND INJUNCTIVE RELIEF THAT

IS OVERLY BROAD AND VAGUE ...............................................................................8
IV.
THE APA IS INAPPLICABLE TO DHSS ISSUANCE OF THE MORTON

MEMORANDUM AND THE DHS MEMORANDUM ...............................................11
V.
AN INJUNCTION WOULD ADVERSELY AFFECT THE PUBLIC

INTEREST AND THE BALANCE OF THE HARDSHIPS FAVORS AMICI.........13
CONCLUSION ............................................................................................................................15
APPX.020
TABLE OF AUTHORITIES
CASES
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227(1937).......................................................................8
Arenas Yeses v. Gonzalez, 421 F.3d 111 (2d Cir. 2005)..................................................................9
Califano v. Yamasaki, 442 U.S. 682 (1979) ....................................................................................8
Center for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006).................................6
Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981)....................................................................12
Graham v. Med. Mut. of Ohio, 130 F.3d 293 (7th Cir. 1997)........................................................14
Gulf Pub. Co. v. Lee, 679 F.2d 44 (5th Cir. 1982)...........................................................................7
Heckler v. Chaney, 740 U.S. 821 (1985) .......................................................................................11
John Doe #1 v. Veneman, 380 F.3d 807 (5th Cir. 2004) .................................................................8
Johnston v. United States, 85 F.3d 217 (5th Cir. 1996)...................................................................5
Lennon v. INS, 527 F.2d 187 (2d Cir. 1975)..................................................................................11
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................................................5
Marseilles Hydro Power, LLC v. Marseilles Land & Water Co.,
299 F.3d 643 (7th Cir. 2002) ...............................................................................................6
Mason v. Mukasey, 306 Fed. Appx. 897 (6th Cir. 2009)...............................................................11
Meltzer v. Board of Public Instruction of Orange County, Fla.,
480 F.2d 552 (5th Cir. 1973) ...............................................................................................6
North Carolina v. Rice, 404 U.S. 244 (1971) ..................................................................................8
Pasquini v. Morris, 700 F.2d 658 (11th Cir. 1983) .......................................................................12
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471 (1999) .............13
Romeiro de Silva v. Smith, 773 F.2d 1021 (9th Cir. 1985) ......................................................11, 12
Sammartano v. First Judicial Dist. Ct., 303 F.3d 959 (9th Cir. 2002) ..........................................14
Samuels v. Wilder, 871 F.2d 1346 (7th Cir. 1989) ..........................................................................9
ii
APPX.021
Soon Bok Yoon v. INS, 538 F.2d 1211 (5th Cir.1976)........................................................................ 11, 12
Spiegel v. City of Houston, 636 F.2d 997 (5th Cir. 1981)..............................................................14
United States v. Martinez, 263 F.3d 436 (5th Cir. 2001)...............................................................10
United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980) ...............................................7, 8
United States v. Salerno, 481 U.S. 739 (1987) ................................................................................6
United Transportation Union v. Foster, 205 F.3d 851 (5th Cir. 2000) .........................................10
U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236 (5th Cir. 1975)...........................8
Valley v. Rapides Parish Sch. Bd., 646 F.2d 925 (5th Cir.1981).....................................................8
Velasco-Gutierrez v. Crossland, 732 F.2d 792 (10th Cir. 1984)...................................................12
Washington State Grange v. Washington State Republican Party,
552 U.S. 442 (2008).............................................................................................................6
CONSTITUTIONAL PROVISIONS AND STATUTES
5 U.S.C. 553(b) ...........................................................................................................................11
5 U.S.C. 553(b)(3)(A).................................................................................................................11
5 U.S.C. 564................................................................................................................................11
8 U.S.C. 1103(a)(1).....................................................................................................................11
8 U.S.C. 1103(2)-(3) .................................................................................................................11
8 U.S.C. 1125(b) ...........................................................................................................................7
8 U.S.C. 1225....................................................................................................................3, 4, 5, 9
8 U.S.C. 1225(a) ...........................................................................................................................5
8 U.S.C. 1225(a)(1).......................................................................................................................5
8 U.S.C. 1225(b) ...........................................................................................................................5
8 U.S.C. 1225(b)(1) ......................................................................................................................4
iii
APPX.022
8 U.S.C. 1225(b)(2) ......................................................................................................................5

8 U.S.C. 1225(b)(1)(A).................................................................................................................4
8 U.S.C. 1225(b)(1)(A)(iii)...........................................................................................................4
8 U.S.C. 1225(b)(2)(A)....................................................................................................... passim
8 U.S.C. 1225(b)(2)(B)(ii) ....................................................................................................3, 4, 5
8 U.S.C. 1229a ..........................................................................................................................5, 9
8 C.F.R. 2.1..................................................................................................................................12
28 U.S.C. 2201..............................................................................................................................7
FED. R. CIV. P. 65.............................................................................................................................8
FED. R. CIV. P. 65 (d)(1)(C) .............................................................................................................6
iv
APPX.023
INTEREST OF AMICI
When Defendant Secretary of Homeland Security Janet Napolitano issued the June 15,
2012 Memorandum entitled Exercising Prosecutorial Discretion with Respect to Individuals
Who Came to the United States as Children (the DHS Memorandum or DACA), Pamela
Resndiz and Carolina Canizalez were undocumented immigrant students1 at the University of
Texas at San Antonio (UTSA). See generally Mot. to Intervene, Exs. C and D. Both young
women graduated that summer, Ms. Canizalez with honors. Mot. to Intervene, Exs. C and D.
After the Department of Homeland Security (DHS) began accepting requests for consideration
of deferred action pursuant to the DHS Memorandum on August 15, 2012, both Ms. Resndiz
and Ms. Canizalez determined that they were eligible and applied. See Mot. to Intervene, Ex. C
at 5; Mot. to Intervene, Ex. D at 7. They received deferred action and approval for work
authorization, and now work full-time. See Mot. to Intervene, Ex. C at 5, 7; Mot. to
Intervene, Ex. D at 7-8. Ms. Resndiz is employed as a facilitator for Advancing America
Foundation, where she conducts outreach to Texas public schools to encourage at-risk students to
pursue higher education. See Mot. to Intervene, Ex. C at 7. Ms. Canizalez is a National
Coordinator for United We Dream, a national nonpartisan organization that advocates for the fair
treatment of immigrant youth and families. See Mot. to Intervene, Ex. C at 8.
Founded in 2005, the University Leadership Initiative (ULI) is a membership-based
association and student organization of the University of Texas-Austin (UT-Austin). See Mot.
to Intervene, Ex. E at 3-5. ULIs mission is to advance the educational attainment and civil
rights of undocumented immigrant youth.2 See id. at 10. ULI promotes higher education for
immigrant students; encourages civic participation among undocumented immigrant students in
1
The term undocumented immigrant student(s) is used to describe students residing in the United States who do
not have authorization by the U.S. government to reside in the United States.
2
See University Leadership Initiative, available at http://www.universityleadership.org/about.html.
APPX.024
secondary schools; and conducts outreach at the local, state and national level to address
problems faced by undocumented immigrant students in college. See id. at 11-16.
ULIs membership is comprised of students currently attending UT-Austin. See id.
ULIs members provide mentorship and support to undocumented immigrant students in
secondary schools. See id. at 3. Through volunteer activities, ULI fulfills its organizational
mission to encourage young, undocumented immigrant students to succeed academically,
graduate from high school, and attend institutions of higher education.
See id.
Many
undocumented immigrant student members of ULI have either received or are eligible for
deferred action under the DHS Memorandum, and require deferred action so that they can
continue to pursue higher education without the threat of deportation interfering with their
studies. See id. at 18. Moreover, eligible student members rely on income earned through
work authorization obtained through deferred action in order to be able to afford college. See id.
at 19.
INTRODUCTION AND SUMMARY OF ARGUMENT
Pending before the Court is Plaintiffs Application for Preliminary Injunctive Relief.
Dkt. 24. On April 23, 2013, after reviewing briefing from the parties and holding a hearing on
the matter, the Court entered a Memorandum Opinion and Order that Plaintiffs are likely to
succeed on the merits of their claim that the DHS Memorandum and related provisions of a June
17, 2011 memorandum issued by Defendant Morton (the Morton Memorandum) violated 8
U.S.C. 1225(b)(2)(A), but deferred its ruling pending requested supplemental briefing from the
parties. Dkt. 58 at 1. The Court did not complete its analysis of Plaintiffs Administrative
Procedures Act (APA) claim, but inferred that Defendants may be likely to succeed on the
merits of that claim. Id. at 34-35.
APPX.025
Amici now respectfully seek to call the Court's attention to pertinent federal immigration
law and facts in the pending matter that have not been raised and therefore may not have been
considered by the Court. Specifically, Plaintiffs lack standing to bring their claim because
DACA-eligible individuals like amici are exempt from 8 U.S.C. 1225(b)(2)(A) under 8 U.S.C.
1225(b)(2)(B)(ii), and therefore, Plaintiffs can suffer no injury from the implementation of the
DHS Memorandum.
In addition, Plaintiffs requested injunctive relief, if granted, is
impermissibly overbroad and vague. Furthermore, the DHS Memorandum does not confer a
substantive immigration benefit so as to trigger administrative rulemaking requirements. Finally,
the balancing of the harms weighs in favor of denying a preliminary injunction where such
would unnecessarily interfere with amicis pursuit of higher education without the threat of
deportation interfering with their studies, and prevent access to income earned through work
authorization obtained through deferred action.
ARGUMENT
I.
PLAINTIFFS CANNOT SHOW INJURY-IN-FACT BECAUSE DACA-ELIGIBLE

INDIVIDUALS ARE EXEMPT FROM 8 U.S.C. 1225(B)(2)(A).
Plaintiffs base the entirety of their injury on an incorrect interpretation of 8 U.S.C.
1225. As Plaintiffs counsel acknowledged during the hearing, 8 U.S.C. 1225 only applies to
aliens3 who have been present in the country for less than two years. 4/8/13 Tr. at 120:13-15.
Because Section 1225(b)(2)(A) specifically exempts aliens who have been present in the U.S. for
more than two years, ICE agents are not permitted by the statute to issue Notices to Appear
(NTAs) to DACA-eligible applicants for admission because DACA applicants must have been
present for at least five years; thus, Plaintiffs cannot claim an injury on that basis.
This term connotes the same meaning as undocumented immigrant for purposes of this brief.
APPX.026
The statutory section at issue includes an exception at 8 U.S.C. 1225(b)(2)(B)(ii),

providing that it is inapplicable to a person to whom 8 U.S.C. 1225(b)(1) applies. In turn, 8
U.S.C. 1225(b)(1) exempts from the description of persons who shall be detained as persons
who establish to the satisfaction of the immigration officer, that. . .[s/he] has been physically
present in the United States continuously for the 2-year period immediately prior to the officers
determination of inadmissibility under [8 U.S.C. 1225(b)(1)(A)].
8 U.S.C.
1225(b)(1)(A)(iii). Thus, an ICE officer who is targeting a detainee must allow the detainee an
opportunity to demonstrate the requisite two years of continuous presence that would exempt
them from enforcement of the statute.
To qualify for favorable discretion under DACA, the DHS Memorandum states that an
applicant must show that s/he has continuously resided in the United States for at least five years
preceding the date of the DACA directive. Dkt. 15, App. A at 1. Accordingly, Plaintiffs will not
suffer negative employment consequences for refraining from initiating proceedings against
DACA-eligible detainees under Section 1225(b), because those individuals are automatically
exempted. Oddly, Plaintiffs requested injunctive relief would allow them to violate federal law,
not comply with it.
Plaintiffs misinterpretation of 8 U.S.C. 1225(b) is not limited to the two-year
exemption set forth at 8 U.S.C. 1225(b)(2)(B)(ii). Plaintiffs also argue, incorrectly, that
Section 1225(b) applies to all DACA-eligible applicants regardless of the manner in which they
entered the United States. Dkt. 24 at 4-5; 4/8/13 Tr. at 120:7-10, 17-19. Without any counter
argument from Defendants, the Court accepted this argument. Dkt. 58 at 10. However, by its
express terms, 8 U.S.C. 1225, only applies to arriving immigrants and those who have not been
APPX.027
admitted.
See
8 U.S.C. 1225(a)(1).4
It excludes immigrants who were admitted and
overstayed their visas. See id. Many DACA applicants were inspected and admitted upon their
arrival to the United States. For example, Ms. Canizalez overstayed a validly-issued visa and
was previously inspected by immigration officers. See Mot. to Intervene, Ex. D at 2. DACA
applicants who were inspected and admitted prior to overstaying a non-immigrant visa do not
trigger 8 U.S.C. 1225(a). In these instances, the shall be detained provision that Plaintiffs
claim requires the initiation of removal proceedings cannot apply. See 8 U.S.C. 1225(b)(2)(A);
8 U.S.C. 1229a.
Without the benefit of the accurate interpretation of 8 U.S.C. 1225(b)(2)(A), however,
the Court adopted Plaintiffs interpretation, determining that the statute requires Plaintiffs to
detain all applicants for admission who are not clearly and beyond a doubt entitled to be
admitted, even those applicants who are DACA-eligible. Dkt. 58 at 22. Any federal court may
review jurisdiction sua sponte at any time. See Johnston v. United States, 85 F.3d 217, 218 n.2
(5th Cir. 1996) (citation omitted). For the reasons stated here, Plaintiffs cannot establish an
injury-in-fact that is fairly traceable to the challenged memoranda or that the injury will be
"redressed by a favorable decision" and, consequently, this case should be dismissed for lack of
jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992).
II.
PLAINTIFFS MISINTERPRET THE GUIDANCE SET FORTH IN THE DHS

MEMORANDUM AND DO NOT IMPLEMENT IT CORRECTLY.
Plaintiffs claims are based on facial challenges to the DHS and Morton Memoranda in
their Amended Complaint. See Dkt. 15 at 15-23. Plaintiffs can only succeed in a facial
An alien present in the United States who has not been admitted or who arrives in the United States (whether or
not at a designated port of arrival and including an alien who is brought to the United States after having been
interdicted in international or United States waters) shall be deemed for purposes of this chapter an applicant for
admission. 8 U.S.C. 1225(a)(1) (emphasis added). Section 1225 (b)(2) then only applies to an alien who is an
applicant for admission. 8 U.S.C. 1225(b)(2).
APPX.028
challenge to the constitutionality of the memoranda by establishing that no set of circumstances

exists under which [they] would be valid. Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 1190 & n.6 (2008) (citing United States v. Salerno, 481 U.S.
739, 745 (1987)); Center for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir.
2006). Their facial challenge must fail.
First, Plaintiffs never identify the relevant provisions of the Morton Memorandum that
they challenge on their face.5 In their Amended Complaint, Plaintiffs identify (and misquote)
one partial sentence from the Morton Memorandum, stating that the Morton Memorandum
asserts prosecutorial discretion. . . [not] to issue, reissue, serve, file, or cancel a Notice to
Appear (NTA). . . Dkt. 15 at 15. If this is the provision that Plaintiffs challenge, the Morton
Memorandum indicates that prosecutorial discretion may be exercised by ICE officers and
agents, and applies to a range of discretionary enforcement decisions, including but not limited
to. . . deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA). Dkt. 34, Att. A
at 2 (emphasis added). Therefore, the Morton Memorandum preserves officer discretion on its
face, especially if the officer was to encounter a detainee who threatened public safety.
Similarly, the DHS Memorandum states explicitly that agencies should consider DACA
applicants for deferred action on a case-by-case individual basis, and that relief will not be
granted in all cases. Dkt. 15, App. A at 2. On their face, these memoranda simply do not strip
Plaintiffs of their discretion to issue NTAs in violation of 8 U.S.C. 1225(b)(2)(A) as alleged by
Plaintiffs. Although Plaintiffs were not required to carry their burden on the merits in full at the
The act to be restrained1 or required cannot be described by reference to the complaint or other documents. Fed.
R. Civ. P. 65(d)(1)(C); see also Meltzer v. Board of Public Instruction of Orange County, Fla., 480 F.2d 552, 554
(5th Cir. 1973); Marseilles Hydro Power, LLC v. Marseilles Land & Water Co., 299 F.3d 643, 646 (7th Cir. 2002)
(injunction must be self-contained).
APPX.029
hearing, they made no effort to meet their burden of persuasion on their facial claims, and those
claims must fail.
To the extent that Plaintiffs advance an as-applied challenge, and the Court permits them
to assert a claim not pled, that challenge must also fail. Plaintiffs provided no evidence that any
agent has suffered or will suffer negative employment consequences as a result of implementing
the memoranda correctly, perhaps because DACA-eligible applicants are exempt from 8 U.S.C.
1125(b), as discussed in Part I.
Although there was some discussion during the hearing of one Plaintiff who received a
letter threatening disciplinary action, that letter was not introduced as evidence in briefing or
during the hearing, and at best, shows that one supervisor likely misunderstood the guidance set
forth on the face of the memoranda. 4/18/13 Tr. at 141:10-15. The testimony of Plaintiffs Crane
and Martin, at best, shows that there are some ICE supervisors on the ground in El Paso and
possibly other parts of the country who are misinterpreting the guidance set forth in the
memoranda. Their misapprehension is unfortunate but certainly does not color a meritorious asapplied claim for Plaintiffs.
Indeed, Plaintiffs misapplication of Section 1225 and the DHS Memorandum turns to a
more serious issue:
that this Court lacks jurisdiction because there is no actual case or
controversy. Under Article III of the U.S. Constitution, there must be an actual controversy
between the parties before legal questions can be answered. See Gulf Pub. Co. v. Lee, 679 F.2d
44, 47-48 (5th Cir. 1982); see also 28 U.S.C. 2201 (Declaratory Judgment Act requiring an
actual controversy). [F]ederal courts are without power to decide questions that cannot affect
the rights of litigants in the case before them, and lack jurisdiction over cases that do touch
upon the legal relationship between the parties having adverse legal interests. United States
APPX.030
Parole Comm'n v. Geraghty, 445 U.S. 388, 411 (1980) (citing North Carolina v. Rice, 404 U.S.
244, 246 (1971) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937)). Here,
there is no actual controversy between the parties because Section 1225 exempts persons whom
Plaintiffs want to target for the issuance of NTAs and the DHS Memorandum instructs Plaintiffs
not to release persons deemed to be threats to public safety.
III.
PLAINTIFFS SEEK DECLARATORY AND INJUNCTIVE RELIEF THAT IS

OVERLY BROAD AND VAGUE.
Plaintiffs are not entitled to a broad-sweeping injunction against the implementation and
enforcement of the Morton Memorandum and the DHS Memorandum because such relief is not
narrowly tailored. Declaratory and injunctive relief must be narrowly tailored to remedy the
actual controversy between the parties. Rule 65 of the Federal Rules of Civil Procedure requires
an injunction to be specific in terms. . . . Fed. R. Civ. P. 65. [T]he scope of injunctive relief
is dictated by the extent of the violation established. . . . Califano v. Yamasaki, 442 U.S. 682,
702 (1979). The district court must narrowly tailor an injunction to remedy the specific action
which gives rise to the order. See John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004)
(citing Valley v. Rapides Parish Sch. Bd., 646 F.2d 925, 942 (5th Cir.1981)). Plaintiffs have not
established an injury or controversy that would warrant enjoining Defendants from implementing
or enforcing the DHS Memorandum in its entirety.
An injunction fails to meet narrow tailoring when it is overbroad or vague. See Veneman,
380 F.3d at 818. Broadness. . . refers to the range of proscribed activity, while vagueness refers
[to] the particularity with which the proscribed activity is described. Id. (citing U.S. Steel
Corp. v. United Mine Workers of Am., 519 F.2d 1236, 1246, n.19 (5th Cir. 1975)). Id. (citing
U.S. Steel Corp. v. United Mine Workers of Am., 519 F.2d 1236, 1246, n.19 (5th Cir. 1975)).
APPX.031
Here, Plaintiffs argued, and the Court agreed, that a controversy exists because Plaintiffs
suffered an invasion of a legally protected interest - the threat of disciplinary action if they issue
an NTA to a DACA-eligible immigrant. Dkt. 58 at 18-24. Yet, Plaintiffs request declaratory
and injunctive relief that far exceeds their ability to issue an NTA. They seek a declaration that
relevant provisions of the Morton Memo and the DHS Memorandum violate 8 U.S.C. 1225,
and an injunction preventing Defendants and their subordinate officers, employees, and agents
from implementing or enforcing the Directive, or taking any adverse action against Plaintiffs
pursuant to the Directive or for not following the Directive. Dkt. 15 at 23-24.6 The DHS
Memorandum applies to many different situations outside the issuance of an NTA. Examples
include, but are not limited to:
-
A Customs and Border Patrol (CBP) agent who encounters an applicant for admission
(or arriving alien) at the border, airport, or seaport, can opt not to perform an expedited
removal and instead release the individual on parole so that they can file an I-821D,
Consideration of Deferred Action for Childhood Arrivals;
An ICE attorney can opt not to file the NTA, thereby not commencing removal
proceedings under 8 U.S.C. 1229a; see also Arenas Yeses v. Gonzalez, 421 F.3d 111,
116-17 (2d Cir. 2005) (proceedings not commenced until NTA, formerly an Order to
Show Cause (OSC), is filed);
An ICE attorney could agree to close administratively the case in order to allow the
potentially DACA-eligible respondent to file an I-821D;
The injunctive relief that Plaintiffs seek in their Amended Complaint also conflicts with the relief they request in
their Application for Preliminary Injunction. In their Amended Complaint, Plaintiffs only seek to enjoin the
implementation of the DHS Memorandum. Dkt. 15 at 24. In their Application for Preliminary Injunction, they seek
to enjoin both the Morton Memorandum and the DHS Memorandum. Dkt. 24 at 25. Plaintiffs requested relief
under the preliminary injunction should fail because it was not adequately pled in their Amended Complaint. See,
e.g., Samuels v. Wilder, 871 F.2d 1346, 1350 (7th Cir. 1989) (issues not raised in the complaint were not considered
by the court).
APPX.032
An ICE attorney can terminate proceedings altogether for someone who has already been
granted deferred action;
USCIS adjudicators receive, process and decide whether to approve or deny I-821D
applications.
The relief Plaintiffs seek is vague because, as shown above, they do not identify what the
relevant provisions of the Morton Memorandum are in their Application for Preliminary
Injunction. See generally Dkt. 24.7 Instead, Plaintiffs simply refer to relevant or related
provisions of the Morton Memorandum. See, e.g., Dkt. 15 at 23; Dkt. 24 at 25. An injunction
against the implementation of relevant provisions would be impermissibly vague.
Declaratory judgments similarly must be limited to the resolution of an actual
controversy. United Transportation Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000)
(citation omitted). As shown above, supra Part II, Plaintiffs have not claimed that the DHS
Memorandum and the Morton Memorandum are unconstitutional in every application. Instead,
their claim is very narrowly applied to their issuance of NTAs to applicants for admission. Dkt.
15 at 15-16; Dkt. 24 at 3-5. Nevertheless, Plaintiffs seek a declaration that the entire DHS
Memorandum violates federal law, a declaration that is overbroad and not tailored to the specific
controversy. Dkt. 15 at 23.
If the Court were to rule in Plaintiffs favor, it could only address their specific injury. At
most, the injunction could only prohibit negative employment consequences to Plaintiffs
specifically for issuing an NTA to any individual who cannot establish two years of continuous
presence. Relief beyond this scope would not be narrowly tailored.
A party waives any issues that are not adequately briefed. See United States v. Martinez, 263 F.3d 436, 438 (5th
Cir. 2001).
10
APPX.033
IV.
THE APA IS INAPPLICABLE TO DHSS ISSUANCE OF THE MORTON

MEMORANDUM AND THE DHS MEMORANDUM.
Intra-agency memoranda such as those at issue here are not subject to notice and
comment rulemaking under the APA, namely because they do not confer substantive rights or
contain the force of law.8 See, e.g., Romeiro de Silva v. Smith, 773 F.2d 1021, 1024 (9th Cir.
1985).
Here, because deferred action is not a substantive benefit, it is not subject to
administrative rulemaking.
The Administrative Procedures Act requires that substantive or legislative rules, which
have the force and effect of law, are subject to the APA's notice-and-comment rulemaking
requirements. See 5 U.S.C. 553(b). The APA imposes several requirements on agency
rulemaking, such as issuance of notice through publication in the Federal Register, formation of
rulemaking committees, and fact-finding and public comment periods prior to enactment. See 5
U.S.C. 564. The APA exempts interpretative rules, general statements of policy, and rules of
agency organization, procedure, or practice. 5 U.S.C. 553(b)(3)(A).
A number of federal courts, including the Fifth Circuit, have analyzed whether
Operations Instructions (INS documents that originally outlined the basis for prosecutorial
discretion) on deferred action operate as substantive rules subject to notice and comment
8
The Morton Memorandum and the DHS Memorandum are not unprecedented uses of Executive authority.
Instead, they are part of a decades-long series of directives and internal analyses relying on prosecutorial discretion
in immigration enforcement to defer removal action against individuals on a case-by-case basis. Plaintiffs asserted
accurately in their preliminary injunction application and at the hearing that deferred action is not set out explicitly
in federal code. Instead, it is established in the powers of the Secretary of Homeland Security, who is responsible
for the administration and enforcement of the immigration laws of the United States, 8 U.S.C. 1103(a)(1), and
who has the ability to establish such regulations. . . deemed necessary for carrying out his [or her] authority under
the provisions of this Act. 8 U.S.C. 1103(2)-(3). In Heckler v. Chaney, the Supreme Court interpreted these
provisions to include prosecutorial discretion - the exclusive authority to initiate or terminate removal proceedings.
See 740 U.S. 821, 831 (1985). Prosecutorial discretion allows the executive branch to initiate or terminate removal
proceedings at will. See, e.g., Mason v. Mukasey, 306 Fed. Appx. 897 (6th Cir. 2009) (finding that deferred action,
one type of prosecutorial discretion, allows enforcement agencies to terminate proceedings, or to decline initiating
proceedings or executing a final order of deportation). Before deferred action was formally recognized in 1975, it
was known within the former INS as non-priority status and was described as an informal administrative stay of
deportation. Lennon v. INS, 527 F.2d 187, 190-91 (2nd Cir. 1975); Soon Bok Yoon v. INS, 538 F.2d 1211, 1213 (5th
Cir. 1976).
11
APPX.034
rulemaking under the APA. These courts hold that such documents do not create a substantive
right, but instead function as internal guidelines and/or general statements of policy that fall
completely to the discretion of the defendants. See, e.g., Soon Bok Yoon, 538 F.2d at 1213
(affirming that non-priority status as originally set forth in Operations Instructions is not a
substantive right); see also Romeiro de Silva, 773 F.2d at 1024 (providing review of other federal
courts which concluded that the Operations Instruction is an intra-agency guideline which
confers no substantive benefit on aliens seeking inclusion in the deferred action category);
Pasquini v. Morris, 700 F.2d 658, 661 (11th Cir. 1983); Velasco-Gutierrez v. Crossland, 732
F.2d 792, 798 (10th Cir. 1984). Because intra-agency memoranda, like Operations Instructions,
do not confer substantive rights or contain the force of law, they are not subject to APA
requirements. See, e.g., Pasquini, 700 F.2d at 662.
The DHS and Morton Memoranda do not have the force of law because, as shown in Part
II, their provisions are not mandatory, should be applied on a case-by-case basis, and do not
grant relief in all cases. The DHS could also withdraw the DHS Memorandum at any time by
issuing a new memorandum detailing different guidance. See 8 C.F.R 2.1.9
Furthermore, the DHS Memorandum does not confer substantive rights because deferred
action is not a substantive benefit. As described above, intra-agency guidelines, which first
outlined deferred action, confer no substantive immigration benefit, or a benefit having the
force and effect of substantive law. Romeiro de Silva, 773 F.2d at 1024 (citing Pasquini v.
Morris, 700 F.2d at 661 (citing Dong Sik Kwon v. INS, 646 F.2d 909 (5th Cir. 1981) (en banc))).
8 C.F.R 2.1 provides: All authorities and functions of the Department of Homeland Security to administer and
enforce the immigration laws are vested in the Secretary of Homeland Security. The Secretary of Homeland Security
may, in the Secretary's discretion, delegate any such authority or function to any official, officer, or employee of the
Department of Homeland Security, including delegation through successive redelegation, or to any employee of the
United States to the extent authorized by law. Such delegation may be made by regulation, directive, memorandum,
or other means as deemed appropriate by the Secretary in the exercise of the Secretary's discretion.
12
APPX.035
Deferred action is an act of administrative convenience, not a statutory entitlement, and is nonappealable, and non-permanent. See Reno v. American-Arab Anti-Discrimination Committee
(AADC), 525 U.S. 471, 486 (1999). The DHS Memorandum does not provide conditional
permanent residency, a path to citizenship, amnesty, or legal status. Instead, it effectively grants
a stay of deportation that is renewable, but not guaranteed, every two years. Dkt. 15, App. A
at 2. Ms. Canizalez and Ms. Rsendiz essentially have a temporary promise from the federal
government that they will not be deported. Technically, they do not have lawful status under
the law, and their previous periods of unlawful presence have not been excused.10
The DHS Memorandum itself states that it confers no substantive rights, immigration
status, or pathway to citizenship. Dkt. 15, App. A at 3. A subsequent memorandum issued by
Defendant Morton describing the DHS Memorandum also emphasizes:
[a]s there is no right to the favorable exercise of discretion by the agency, nothing
in this memorandum should be construed to prohibit the apprehension, detention,
or removal of any alien unlawfully in the United States or to limit the legal
authority of DHS or any of its personnel to enforce federal immigration law.
Similarly, this memorandum, which may be modified, superseded, or rescinded at
any time without notice, is not intended to, does not, and may not be relied upon
to create any right or benefit, substantive or procedural, enforceable at law by any
party in any administrative, civil, or criminal matter.
See DHS Memorandum: Secretary Napolitano's Memorandum Concerning the Exercise of
Prosecutorial Discretion for Certain Removable Individuals Who Entered the United States as a
Child, June 15, 2012, p. 2.11
V.
AN INJUNCTION WOULD ADVERSELY AFFECT THE PUBLIC

INTEREST AND THE BALANCE OF THE HARDSHIPS FAVORS AMICI.
10
Unlawful presence is the duration of time during which an immigrant over the age of 18 is present in the United
States without permission and may later prevent admissibility under the Immigration and Nationality Act (INA).
INA 212(a)(9)(B).
11
Available at https://docs.google.com/viewer?url=https://www.ice.gov/doclib/about/offices/ero/pdf/s1-certainyoung-people-morton.pdf. This is a separate memorandum from the DACA and the Morton Memoranda discussed
above.
13
APPX.036
In addition to interfering with legitimate immigration law enforcement by Defendants,12

an injunction would also cause substantial harm to nonparties such as amici in this case.
Plaintiffs have failed to show that any potential injury outweighs the injury of nonparties like
amici if the DHS Memorandum is enjoined. See, e.g., Graham v. Med. Mut. of Ohio, 130 F.3d
293, 295 (7th Cir. 1997) (noting that the court must consider the impact of an injunction on
nonparties). The effect of injunctive relief on nonparties is a compelling reason for denying
injunctive relief, especially in light of an overly broad injunction. See, e.g., Spiegel, 636 F.2d at
1002-03; Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002).
As of January 17, 2013, United States Citizenship and Immigration Services (USCIS)
had approved more than 268,000 individuals for deferred action, out of more than 488,792
applicants, since it began accepting applications for DACA.13 Ms. Resndiz, Ms. Canizalez, and
the undocumented immigrant student members of ULI are representative of those individuals and
are the true face of DACA. They are young people who came to the United States without
choice, are Americans in their hearts and minds, and wish to pursue higher education, earn
income to support their families, and contribute meaningfully to their communities without the
specter of deportation. Mot. to Intervene, Ex. C at 5, 7; Mot. to Intervene, Ex. D at 7-8.
Without deferred action under the DHS Memorandum, they would not be able to remain in the
country lawfully, pursue educational opportunities without the constant fear of deportation, or
work to support themselves. In addition, thousands of American employers would be harmed
substantially if hundreds of thousands of DACA employees suddenly lose work authorization.
12
See Dkt. 34 at 23-24; Spiegel v. City of Houston, 636 F.2d 997, 1002-03 (5th Cir. 1981) (holding that public
interest was harmed when injunction prevented legitimate law enforcement activities).
13
USCIS Office of Performance and Quality (OPQ), Deferred Action for Childhood Arrivals Process, April. 2013,
available at
https://docs.google.com/viewer?url=http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/Immigrati
on%20Forms%20Data/All%20Form%20Types/DACA/20130412%20DACA%20Final%20Monthly%20Report.pdf.
14
APPX.037
For these reasons, Movants respectfully urge the Court to deny the preliminary injunction
of DACA, which would have a substantial adverse affect on the public interest that outweighs
any effect on Plaintiffs.
CONCLUSION
For the foregoing reasons, amici respectfully request that the Court deny Plaintiffs
Application for Preliminary Injunction.
Dated: May 6, 2013
s/Marisa Bono
Marisa Bono
David G. Hinojosa
Nina Perales
Telephone: (210) 224-5476
Telecopier: (210) 224-5382
3301 Elm St.
Dallas, TX 75226
Telephone: (214) 939-9222
Telecopier: (214) 939-9229
15
APPX.038
By: _____s/Marisa Bono
16
APPX.039
EXHIBIT C
APPX.040

DALLAS DIVISION

Plaintiffs,
v.
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and
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Civil Action No.

3:12CV32470
DECLARATION OF PAMELA RESNDIZ

I, Pamela Resndiz, hereby declare under penalty of perjury as follows:
APPX.041
1.
MynameisPamelaResndiz.Iamover18yearsofageandfullycompetenttotestify
tothemattersinthisdeclaration.Ihavepersonalknowledgeofthefactsandstatements
containedinthisdeclarationandeachofthemiscorrect.
2.
Iamtwentyfouryearsold.IresideinTravisCounty,Texas.IwasborninMexico
andlivedthereuntilIwasnineyearsold.
Atthattime,myfamilyemigratedtothe
UnitedStatesforeconomicreasons,andbecausetheywantedabetterandbrighter
futureforourfamily.
3.
Myparentsencouragedmetopursueeducation.IgrewupinRockwall,Texas,and
graduatedfromRockwallHighSchoolin2007.IwasacceptedtotheUniversityof
TexasatSanAntonio(UTSA)andenrolledinschoolthereafterIgraduatedfrom
highschool.
4.
IgraduatedfromUTSAinAugustof2012,withaB.A.inPoliticalScienceandminor
inLatinAmericanStudies.Atthattime,Ihaddeferredaction,butIknewitwasgoing
toexpirethatOctober.MydeferredactionstatusexpiredOctober21,2012.
5.
IappliedforDACAinSeptemberof2012Ialsoappliedforworkauthorization,and
receivedworkauthorizationonApril5,2013.
6.
Growingupasanundocumentedstudentwasverydifficultonmeandmyfamily.Our
economicopportunitieswerelimitedbecauseofourimmigrationstatus,andwewerein
constantfearofbeingfoundoutandsplitapart.
7.
Ibecamedeterminedtohelpthemfulfilltheirpotentialintheircommunitiesregardlessof
APPX.042
theirimmigrationstatus.ThroughoutcollegeIwasactiveineffortstopromotefair
treatmentandsupportforundocumentedstudents.IhelpedfoundtheSanAntonio
ImmigrantYouthMovement(SAIYM),anorganizationthatfocusesonproviding
empowerment,guidance,andadvocacyforundocumentedyouth.
7.
IamcurrentlyemployedasafacilitatorfortheAdvancingAmerica,LLC(AA,LLC).
Asafacilitator,IvisitatriskpublicschoolsinTexasandmeetwithstudentsandtheir
parentstoencouragethemtopursuehighereducation.Ilovemyjobandfeelthankful
tohavetheopportunitytogivebacktomycommunity.Ihopetoreturntograduate
schoolandbecomeapublicschoolteacher.
7.
DACAgavemeanopportunitytoengageineventhesimplesttasks,suchasdrivingand
runningerrands,withoutfearofdeportation.Italsogavemetheabilitytosupport
myselffinancially.Icantsupportmyselflawfullywithoutworkauthorization.
8.
IfthecourtenjoinsDACA,Iwillfalloutofdeferredactionstatusandasaresult,Iwill
loseworkauthorization,whichinturnwillriskmyemployment.Iwouldnothaveany
otherimmediatemeanstogetbackintodeferredactionstatusorregainmyemployment
authorizationwithoutDACA.
APPX.043
APPX.044
EXHIBIT D
APPX.045

DALLAS DIVISION

Plaintiffs,
v.
Defendants,
and
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Civil Action No.

3:12-CV-3247-0
DECLARATION OF CAROLINA CANIZALEZ

I, Carolina Canizalez, hereby declare under penalty of perjury as follows:
1.
My name is Carolina Canizalez. I am over 18 years of age and fully competent to

testify to the matters in this declaration. I have personal knowledge of the facts
and statements contained in this declaration and each of them is correct.
APPX.046
2.
I am twenty-three years old. I reside in Bexar County, Texas. I was born in

Mexico. When I was ten years old, my family came to the United States because
my mother was trying to escape abuse from my father and create a better life for
us.
3.
I grew up in San Antonio, Texas, and attending Alamo Heights High School. My
mother was a housekeeper in the Alamo Heights neighborhood, and she always
stressed the importance of education to me so that I could have a better life. After
graduating from high school with a 4.0, I enrolled at the University of Incarnate
Word. Because of my immigration status I was ineligible for federal grants and
loans, and I had to drop out after the first semester because I could not afford the
tuition and costs.
4.
I worked for a year doing odd jobs and domestic work before I was accepted to
the University of Texas at San Antonio (UTSA) and began school there.
5.
In 2009, my grandmother passed away in Mexico and I could not go to her funeral
or be with my family during our time of loss. I felt outraged that my family
should be separated and decided to fight so that one day my family can be
reunited, and so that other dont have to experience separation from their loved
ones. I became an organizer and activist for immigrants rights at UTSA. I helped
found the San Antonio Immigrant Youth Movement (SAIYM), an organization
that focuses on providing empowerment, guidance, and advocacy for
undocumented youth.
APPX.047
6.
I graduated from UTSA in August of 2012, with a B.A. in Technical

Communications. Even though I graduated with the honors, before DACA was
implemented, I had no prospects after college and had no idea what I was going to
do to support myself or further my career. When I heard about DACA on the
news it felt like a miracle.
7.
I applied for DACA on September 21, 2012, and received deferred action under
DACA on November 28, 2012. I also applied for work authorization, and
received work authorization on the same day.
8.
One day I would like to go back to school to become an attorney, but for now I
want to continue work towards fair treatment for undocumented youth. I am
currently employed as a National Coordinator for United We Dream (UWD).
UWD is a national, nonpartisan, immigrant youth-led organization that advocates
for the dignity and fair treatment of immigrant youth and families, regardless of
immigration status.
9.
DACA gave me an opportunity to engage in even the simplest tasks, such as

driving and running errands, without fear of deportation. It also gave me the
ability to support myself financially. I cant support myself lawfully without
work authorization.
APPX.048
APPX.049
EXHIBIT E
APPX.050

DALLAS DIVISION

Plaintiffs,
v.
Defendants,
and
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Civil Action No.

3:12-CV-3247-0
DECLARATION OF JUANA GUZMAN
I, Juana Guzman, a representative of the University Leadership Initiative (ULI),

hereby declare under penalty of perjury as follows:
APPX.051
1. My name is Juana Guzman. I am over 18 years of age and fully competent to

testify to the matters in this declaration. I have personal knowledge of the facts
and statements contained in this declaration and each of them is correct.
2. I am a member of ULIs Executive Board and a graduate of the University of
Texas at Austin (UT-Austin).
3. ULI is membership-based association and student organization of UT-Austin.
4. ULI was founded in 2005.
5. ULIs members pay dues to the organization each semester. Membership dues
are used to finance the organizations functions and activities.
6. Members of ULI elect the organizations officers annually. Only ULI members
may serve as officers of the organization. Officer positions include the president,
vice president, secretary, treasurer, and historian of the organization.
7. ULI has an Executive Board comprised of founding members of the organization.
ULIs president also sits on the Executive Board.
8. ULIs members include current documented and undocumented immigrant
students enrolled at UTAustin.
9. ULIs members include current documented and undocumented immigrant
students who have lived in the United States for many years and graduated from
high schools in Texas.
10. ULIs mission is to advance the educational attainment and civil rights of its
members and other undocumented immigrant students.
11. To fulfill its organizational goals, ULIs members mentor and offer advice and
guidance to undocumented immigrant students in secondary schools.
These
APPX.052
activities expose undocumented immigrant youth in high school to college

students and encourage them to succeed academically, graduate from high school,
and pursue higher education.
12. ULIs members make frequent presentations to students and parents in secondary
schools to explain the process of applying for college admission and student
financial aid.
13. ULI also encourages civic participation by undocumented immigrant students
among its membership and in secondary schools.
14. ULI further conducts outreach at the local, state and national level to address
problems faced by undocumented immigrant students in college.
15. ULI works closely with documented and undocumented immigrant students from
other public colleges and universities in Texas and other states to perform
advocacy work, including campaigns to raise awareness of and support for the
DACA Program and the Development, Relief and Education for Alien Minors Act
(DREAM Act), a proposed law that would provide recognized federal
immigration status to qualified undocumented immigrant students.
16. Because preserving the ability of undocumented immigrant students to pursue
higher education is vital to the organizational mission, goals and objectives of
ULI as well as critical to ULIs members ability to attend school, ULI and its
members have sponsored and conducted educational forums and events to provide
information to members on the deferred action application process under DACA.
APPX.053
17. ULI and its members face strong opposition from anti-immigrant groups and
individuals who have ideological objections to undocumented immigrant students
attending public colleges and universities.
18. Many undocumented immigrant student members of ULI have either received or
are eligible for deferred action under DACA, and require deferred action so that
they can continue to pursue higher education without the threat of deportation
interfering with their studies.
19. ULI members who are DACA-eligible also rely on income earned through work
authorization obtained through deferred action in order to be able to afford
college.
20. If an injunction is entered in this lawsuit, ULI would have to expend additional
resources educating its members about the effect of the injunction on their
applications for deferred action, and it would impair ULIs members ability to
achieve higher education and civic participation.
21. As long as DACA remains in force, ULI members have the assurance from the
federal government that they will not be deported, allowing them to pursue
educational opportunities and support themselves financially with work
authorization.
APPX.054
APPX.055
EXHIBIT F
APPX.056
APPX.057
APPX.058
APPX.059
APPX.060
APPX.061
APPX.062

DALLAS DIVISION

Plaintiffs,
v.
Defendants,
and
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Civil Action No.

3:12-CV-3247-0
ORDER GRANTING PROPOSED DEFENDANTINTERVENORS MOTION TO INTERVENE AS DEFENDANTS

Before the Court is Proposed Defendant-Intervenors Motion to Intervene as Defendants.
The Court finds that this Motion is unopposed, well-taken, and therefore GRANTED.
It is therefore ORDERED that Defendant-Intervenors Motion to Intervene as Defendants

is GRANTED, and the Clerk of Court is hereby ORDERED to file Exhibit A to DefendantIntervenors Motion. The Court further ORDERS that the case be restyled as it appears above.
IT IS SO ORDERED ON THIS ______ DAY OF ___________________, 2013,
BY THE COURT:
_______________________________
United States District Judge

Obama Non-Deportation Policy Case - Crane V Napolitano - Motion To Intervene University Leadership Initiative

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Case 3:12-cv-03247-O Document 61 Filed 05/06/13

Page 1 of 6 PageID 1027

IN THE UNITED STATES DISTRICT COURT

CHRISTOPHER L. CRANE, DAVID A.

Civil Action No.

Case 3:12-cv-03247-O Document 61 Filed 05/06/13

Page 2 of 6 PageID 1028

or Proposed Organizational Defendant-Intervenor), hereby respectfully move the Court for

In the alternative, Proposed Defendants-Intervenors

Thus, if intervention is granted, Proposed Defendant-

Case 3:12-cv-03247-O Document 61 Filed 05/06/13

Page 3 of 6 PageID 1029

Case 3:12-cv-03247-O Document 61 Filed 05/06/13

Ex. C at 8, Ex. D at 10.

Page 4 of 6 PageID 1030

They will also likely lose their employment

authorization under the DHS Memo. Ex. C at 8, Ex. D at 10.

Dated: May 6, 2013

Case 3:12-cv-03247-O Document 61 Filed 05/06/13

Page 5 of 6 PageID 1031

CLOUTMAN AND CLOUTMAN

Case 3:12-cv-03247-O Document 61 Filed 05/06/13

Page 6 of 6 PageID 1032

By: _____s/Marisa Bono_

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

Page 1 of 26 PageID 1033

IN THE UNITED STATES DISTRICT COURT

CHRISTOPHER L. CRANE, DAVID A.

Civil Action No.

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

Page 2 of 26 PageID 1034

INTERVENTION AS OF RIGHT IS WARRANTED .......................................................6

Movants Motion to Intervene is Timely .............................................................7

Movants Seek to Vindicate a Protectable Interest ............................................11

Movants Interests Would be Impaired if Intervention Were Denied........... 14

The Existing Defendants Will Not Adequately Represent

MOVANTS ARE ENTITLED TO PERMISSIVE INTERVENTION .......................18

MOVANTS ARE ENTITLED TO PARTICIPATE AS AMICUS CURIAE..............20

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

Page 3 of 26 PageID 1035

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

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Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

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Fed. R. Civ. P. 24(a)(2)..........................................................................................................6, 7, 14

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

Page 6 of 26 PageID 1038

Proposed Defendant-Intervenors Pamela Resndiz and Carolina Canizalez (Proposed

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

Page 7 of 26 PageID 1039

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

Page 8 of 26 PageID 1040

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

Page 9 of 26 PageID 1041

ULI promotes higher education for

immigrant students; encourages civic participation among undocumented immigrant students in

Through these volunteer activities, ULI fulfills its

organizational mission to encourage young, undocumented immigrant students to succeed

work authorization in order to be able to afford college. See id. at 19.

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

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Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13

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