United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

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

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

Plaintiffs—Appellees,

versus

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

Defendants—Appellants,

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

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

No. 21-40680

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:18-CV-68

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

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

2 Case: 21-40680 Document: 00516498357 Page: 3 Date Filed: 10/05/2022