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NO. 15-40238
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE OF TEXAS, et al.,

Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Respondents.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS AT BROWNSVILLE
No. 1:14-cv-00254
The Honorable Andrew S. Hanen
United States District Court Judge

BRIEF OF THE AMICUS STATES OF WASHINGTON, CALIFORNIA,

CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, IOWA,
MARYLAND, MASSACHUSETTS, NEW MEXICO, NEW YORK,
OREGON, RHODE ISLAND, AND VERMONT, AND THE DISTRICT OF
COLUMBIA, IN SUPPORT OF MOTION TO STAY DISTRICT COURT
PRELIMINARY INJUNCTION

ROBERT W. FERGUSON
Attorney General
Noah G. Purcell, WSBA 43492
Solicitor General
Counsel of Record
Anne E. Egeler, WSBA 20258
Deputy Solicitor General

Washington Office of Attorney General

PO Box 40100
Olympia, WA 98504-0100
360-753-6200 (office)
[email protected]

Additional Amici Listed On Signature Page

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TABLE OF CONTENTS

I.

INTRODUCTION ........................................................................................... 1

II.

IDENTITY AND INTEREST OF AMICUS CURIAE .................................. 1

III.

ARGUMENT ................................................................................................... 2
1.

IV.

The United States Is Likely To Succeed On The Merits

Of Its Appeal ......................................................................................... 2
A.

Plaintiffs Failed To Show Irreparable Injury .............................. 2

B.

The Equities And Public Interest Disfavored

Injunctive Relief .......................................................................... 4

C.

The Injunction Is Overbroad ....................................................... 8

2.

A Stay Will Not Injure Plaintiffs And Is In The Public

Interest ................................................................................................... 9

3.

At The Very Least, A Stay Is Warranted As To

Non-Plaintiff States ............................................................................. 10

CONCLUSION.............................................................................................. 10

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TABLE OF AUTHORITIES

Cases
Arizona Dream Act Coal. v. Brewer
757 F.3d 1053 (9th Cir. 2014) ................................................................................3
Aviation Consumer Action Project v. Washburn
535 F.2d 101 (D.C. Cir. 1976) ...........................................................................4, 8
Davis v. Romney
490 F.2d 1360 (3d Cir. 1974) .................................................................................8
Hollon v. Mathis Indep. Sch. Dist.
491 F.2d 92 (5th Cir. 1974) ....................................................................................8
Janvey v. Alguire
647 F.3d 585 (5th Cir. 2011) ..................................................................................2
Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott
734 F.3d 406 (5th Cir. 2013) ..................................................................................2
Roho, Inc. v. Marquis
902 F.2d 356 (5th Cir. 1990) ..................................................................................8
Stormans, Inc. v. Selecky
586 F.3d 1109 (9th Cir. 2009) ................................................................................8
Texas v. United States
106 F.3d 661 (5th Cir. 1997) ..................................................................................3
Winter v. Natural Res. Def. Council, Inc.
555 U.S. 7 (2008) ...................................................................................................7
Statutes
8 U.S.C. 1621 ..........................................................................................................3

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Rules
Fed. R. App. P. 29(a) .................................................................................................1
Other Authorities
Center for American Progress,
Executive Action On Immigration Will Benefit Washingtons
Economy, http://www.scribd.com/doc/247296801/EconomicBenefits-of-Executive-Action-in-Washington
(last visited Mar. 3, 2015).......................................................................................5
Center for American Progress,
Topline Fiscal Impact of Executive Action Numbers for 31 States,
http://www.scribd.com/doc/248189539/Topline-Fiscal-Impact-ofExecutive-Action-Numbers-for-28-States (last visited Mar. 3, 2015) ...............5, 6
Dr. Raul Hinojosa-Ojeda,
From the Shadows to the Mainstream: Estimating the Economic
Impact of Presidential Administrative Action and Comprehensive
Immigration Reform (N. Am. Integration & Dev. Ctr., UCLA,
Nov. 21, 2014), available at http://www.naid.ucla.edu/estimatingthe-economic-impact-of-presidential-administrative-action-andcomprehensive-immigration-reform.html ............................................................5
Fact Sheet: Immigration Accountability Executive Action
(Nov. 20, 2014), http://www.whitehouse.gov/the-press-office/
2014/11/20/fact-sheet-immigration-accountability-executive-action
(last visited Mar. 3, 2015).......................................................................................7
Migration Policy Inst.,
National and State Estimates of Populations Eligible for Anticipated
Deferred Action and DACA Programs (2014) (Excel spreadsheet),
http://www.migrationpolicy.org/sites/default/files/datahub/US-StateEstimates-unauthorized-populations-executive-action.xlsx
(last visited Mar. 3, 2015).......................................................................................5

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Natalia Lee et al.,

National Survey of Service Providers on Police Response to
Immigrant Crime Victims, U Visa Certification and Language Access
(Apr. 16, 2013), available at http://www.masslegalservices.org/
system/files/library/Police%20Response%20U%20Visas%20Langua
ge%20Access%20Report%20NIWAP%20%204%2016%2013%
20FINAL.pdf ..........................................................................................................6
Pew Research Center,
Unauthorized Immigrants in the U.S., 2012 (Nov. 18, 2014),
http://www.pewhispanic.org/interactives/unauthorized-immigrants2012/ (last visited Mar. 3, 2015) ............................................................................4
Police Foundation, Anita Khashu,
The Role of Local Police: Striking a Balance Between Immigration
Enforcement and Civil Liberties (2009), available at http://www.police
foundation.org/sites/g/files/g798246/f/Khashu%20%282009%29%20%20The%20Role%20of%20Local%20Police.pdf .................................................6
Univ. of Illinois at Chicago, Dept of Urban Planning and Policy,
Nik Theodore, Insecure Communities: Latino Perceptions of Police
Involvement in Immigration Enforcement (May 2013), available at
http://www.policylink.org/sites/default/files/INSECURE_
COMMUNITIES_REPORT_FINAL.PDF ............................................................6

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I.

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INTRODUCTION

A single State cannot dictate national immigration policy, yet that is what
the district court allowed here. Relying entirely on Texass speculative claims, the
district court enjoined vital immigration reforms nationwide. Those reforms will
benefit millions of people and their families, as well as the States in which they
reside. This Court should stay the district courts order because the United States is
likely to prevail on the merits of its appeal, the stay will not harm Plaintiffs, and a
stay is overwhelmingly in the public interest. At the very least, this Court should
stay the order outside Texas, as no other State has presented any evidence that it
will suffer the irreparable injury needed to justify injunctive relief. As the States
joining this brief show below, States will benefit from these immigration reforms.
The amici States should not have to live under an improper injunction based on
harms other States incorrectly claim they will suffer.
II.

IDENTITY AND INTEREST OF AMICUS CURIAE

The States of Washington, California, Connecticut, Delaware Hawaii,

Illinois, Iowa, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode
Island, and Vermont, and the District of Columbia (the amici States) file this
amicus brief under Federal Rule of Appellate Procedure 29(a). The amici States
have a strong interest in the outcome of this stay request because of the millions of
residents in our States who would be eligible to participate in the programs the

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district court erroneously enjoined and the economic, humanitarian, and public
safety benefits that our States will receive through these programs. We also add a
helpful perspective by rebutting the distorted picture Plaintiffs have offered of the
impacts of the federal governments recent immigration directives on States.
III.

ARGUMENT

All of the factors this Court considers support granting a stay, but to avoid
repetition the amici States will focus on: (1) whether the stay applicant has made
a strong showing that he is likely to succeed on the merits; . . . (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.

Planned Parenthood of

Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013)
(quoting Nken v. Holder, 556 U.S. 418, 425-26 (2009)).
1.

The United States Is Likely To Succeed On The Merits Of Its Appeal

The United States has explained why the district courts holding that the

immigration directives violate the Administrative Procedure Act is incorrect. The

amici States agree, but focus on other reasons preliminary relief was unjustified.
A.

Plaintiffs Failed To Show Irreparable Injury

The only irreparable injury the district court found Plaintiffs would suffer
was increased costs to process applications for drivers and other licenses. Order at
115-16. This erroneous conclusion relied on a mistake of law, and thus is reviewed
de novo. See Janvey v. Alguire, 647 F.3d 585, 592 (5th Cir. 2011).

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This Court has already held as a matter of law that costs States incur related
to undocumented immigrants as a result of State law are a matter of State choice,
not the result of federal coercion. Texas v. United States, 106 F.3d 661, 666 (5th
Cir. 1997). Nothing in the immigration directives requires States to provide
licenses or benefits to anyone. States retain authority to shape their laws to limit
the availability of State benefits and licenses. 8 U.S.C. 1621. The district court
nonetheless concluded that Plaintiffs, including Texas, will have to provide
drivers licenses under the Ninth Circuits ruling in Arizona Dream Act Coalition
v. Brewer, 757 F.3d 1053 (9th Cir. 2014). But that case merely held that if a State
gives drivers licenses to one group of deferred-action recipients, it cannot deny
licenses to recipients of other kinds of deferred action without a rational basis.
Id. at 1062. Having to comply with the constitutional prohibition against
discrimination cannot be considered an irreparable injury.
Moreover, the district court erred as a matter of law by accepting Texass
claims about licensing costs as justifying nationwide injunctive relief. In
concluding that States will suffer substantial unrecoverable costs due to the
immigration directives, the district court cited a single documenta declaration of
an employee of the Texas Department of Public Safety. Order at 115 (citing
U.S.D.C. S.D. Tex. Dkt. No. 64, Ex. 24). No other Plaintiff State presented any
evidence, whatsoever, of similar licensing costs, and it was improper for the

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district court to accept Texass evidence as dispositive for all Plaintiffs. Indeed,
many Plaintiff States have very small undocumented immigrant populations,1 so
any claimed fear of a massive influx of license applicants is untenable. It was error
for the district court to enter nationwide injunctive relief based on a single States
evidence of harm. See, e.g., Aviation Consumer Action Project v. Washburn,
535 F.2d 101, 108 (D.C. Cir. 1976) (An injunction must be narrowly tailored to
remedy the specific harm shown.).
B.

The Equities And Public Interest Disfavored Injunctive Relief

In evaluating the equities and public interest, the district court erred by
overlooking the enormous benefits that individuals and States, including the
Plaintiff States, stand to receive due to the immigration directives.
Weighing the equities, the district court found that the United States would
suffer no harm from an injunction, while Plaintiffs would suffer substantial costs if
an injunction was denied. The United States has explained why the first conclusion
is incorrect. The second is as well, for States will benefit from the immigration
directives, not suffer harm.
As demonstrated above, the licensing costs Plaintiffs allege they will incur
are unsupported and within their own control. Meanwhile, there is overwhelming
1

For example, Montana, North Dakota, South Dakota, and West Virginia are each home
to less than 5,000 undocumented immigrants. Pew Research Center, Unauthorized Immigrants in
the U.S., 2012 (Nov. 18, 2014), http://www.pewhispanic.org/interactives/unauthorizedimmigrants-2012/ (last visited Mar. 3, 2015).
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evidence that the immigration directives will benefit States, including Texas. When
immigrants are able to work legallyeven for a limited timetheir wages
increase, they seek work compatible with their skill level, and they enhance their
skills to obtain higher wages, all of which benefits State economies by increasing
income and growing the tax base.2 In Washington State, for example,
approximately 105,000 people are likely to be eligible for deferred immigration
action.3 Moving these people out of the shadows and into the legal workforce is
estimated to increase Washingtons tax revenues by $57 million over the next five
years.4 Californias tax revenues are estimated to grow by $904 million over the
next five years, with an anticipated 1,214,000 people eligible for deferred
immigration action.5 The tax consequences for the Plaintiff States are also positive.
For example, if the estimated 594,000 undocumented immigrants eligible for

Dr. Raul Hinojosa-Ojeda, From the Shadows to the Mainstream: Estimating the
Economic Impact of Presidential Administrative Action and Comprehensive Immigration Reform
9-10 (N. Am. Integration & Dev. Ctr., UCLA, Nov. 21, 2014), available at
http://www.naid.ucla.edu/estimating-the-economic-impact-of-presidential-administrativeaction-and-comprehensive-immigration-reform.html.
3

Migration Policy Inst., National and State Estimates of Populations Eligible for
Anticipated Deferred Action and DACA Programs (2014) (Excel spreadsheet),
http://www.migrationpolicy.org/sites/default/files/datahub/US-State-Estimates-unauthorizedpopulations-executive-action.xlsx (last visited Mar. 3, 2015).
4

Center for American Progress, Executive Action On Immigration Will Benefit

Washingtons
Economy,
http://www.scribd.com/doc/247296801/Economic-Benefits-ofExecutive-Action-in-Washington (last visited Mar. 3, 2015).
5

Center for American Progress, Topline Fiscal Impact of Executive Action Numbers for
31 States, http://www.scribd.com/doc/248189539/Topline-Fiscal-Impact-of-Executive-ActionNumbers-for-28-States (last visited Mar. 3, 2015).
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deferred action in Texas receive temporary work permits, it will lead to an

estimated $338 million increase in the State tax base over five years.6
The immigration directives will also benefit States by improving public
safety. Effective local law enforcement depends on a trusting relationship between
police and the communities they serve. But that relationship is undermined when
undocumented immigrants fear that interactions with the police could lead to their
deportation or the deportation of their family or friends.7 Studies show that people
are less likely to report crimes if they fear the police will inquire into their or their
familys immigration status,8 and undocumented immigrants who are crime victims
report the crimes in greater numbers when they have received some form of
temporary legal immigration status, such as U-Visas for domestic violence
victims.9 Additionally, the immigration directives protect public safety by

Id.

Police Foundation, Anita Khashu, The Role of Local Police: Striking a Balance
Between Immigration Enforcement and Civil Liberties 24 (2009), available at
http://www.policefoundation.org/sites/g/files/g798246/f/Khashu%20%282009%29%20-%20The
%20Role%20of%20Local%20Police.pdf.
8

Univ. of Illinois at Chicago, Dept of Urban Planning and Policy, Nik Theodore,
Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement 56 (May 2013), available at http://www.policylink.org/sites/default/files/INSECURE_
COMMUNITIES_REPORT_FINAL.PDF.
9

See Natalia Lee et al., National Survey of Service Providers on Police Response to
Immigrant Crime Victims, U Visa Certification and Language Access 6-7, 13 (Apr. 16, 2013),
available
at
http://www.masslegalservices.org/system/files/library/Police%20Response
%20U%20Visas%20Language%20Access%20Report%20NIWAP%20%204%2016%2013%20F
INAL.pdf.
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requiring certain undocumented immigrants to pass criminal and national security

background checks.10
The district court also erred by giving short shrift to the strong public
interest in favor of allowing the directives to take effect. See, e.g., Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (holding that courts should
pay particular regard for the public consequences in employing the extraordinary
remedy of injunction). The district court concluded that because potential
beneficiaries of deferred action are unlikely to be removed even without the
directives (because they pose no public safety risk and are low enforcement
priorities), the benefits they will receive through deferred action are unimportant.
Order at 120. But receiving deferred action and work authorization are critically
important to the millions of people eligible. They will finally be able to come out
of the shadows, work legally, increase their earnings, report crimes and abuses, and
live without the constant fear of being deported and separated from their families.
States will also benefit through increased tax revenue, enhanced public safety as
undocumented immigrants and their families become less fearful of contacting law
enforcement, and fewer heartbreaking incidents in which U.S. citizen children are

10

See, e.g., Fact Sheet: Immigration Accountability Executive Action (Nov. 20, 2014),
http://www.whitehouse.gov/the-press-office/2014/11/20/fact-sheet-immigration-accountabilityexecutive-action (last visited Mar. 3, 2015).
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separated from their deported parents and left to rely on extended family or state
social services.
C.

The Injunction Is Overbroad

Another reason the United States is likely to succeed on appeal is that the
injunction is overbroad. The district court enjoined the immigration directives
nationwide, even though the only evidence of harm it cited had to do with Texas
and even though dozens of States declined to join Plaintiffs lawsuit and have
never even alleged they will suffer any harm from the directives. By entering a
nationwide injunction based entirely on evidence of purported harm to a single
state, the district court abused its discretion. See, e.g., Stormans, Inc. v. Selecky,
586 F.3d 1109, 1119 (9th Cir. 2009) ([a]n overbroad injunction is an abuse of
discretion ) (alteration in original) (quoting Lamb-Weston, Inc. v. McCain Foods,
Ltd., 941 F.2d 970, 974 (9th Cir. 1991)); accord Roho, Inc. v. Marquis, 902 F.2d
356, 361 (5th Cir. 1990) ([A]ny relief granted should be no broader than necessary to cure the effects of the harm caused.) (internal quotation marks omitted).
A preliminary injunction may not reach[ ] further than is necessary to serve
[its] purpose. Hollon v. Mathis Indep. Sch. Dist., 491 F.2d 92, 93 (5th Cir. 1974)
(per curiam). And an injunction must be narrowly tailored to remedy the specific
harm shown. Aviation Consumer Action Project, 535 F.2d at 108; see also Davis
v. Romney, 490 F.2d 1360, 1370 (3d Cir. 1974) (vacating injunction as overly

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broad and holding that injunctions must be tailored to remedy the specific harms
shown rather than to enjoin all possible breaches of the law ) (quoting
Hartford-Empire Co. v. United States, 323 U.S. 386, 410 (1945)). Here, the
purported purpose of the district courts preliminary injunction is to protect the
Plaintiff States from irreparable injuries they allegedly would suffer if the
immigration directives were not enjoined before a trial on the merits. See, e.g.,
Order at 113-17. And the only evidence Plaintiffs introduced of such harm
concerned Texas. At most, then, the Plaintiff States showing would support a
narrow injunction tailored to protect Texas from this purported harm.
But the district court enjoined the immigration directives nationwide,
including in Plaintiff States that have alleged no harm and in non-Plaintiff States
that will benefit from the directives. That broad injunction goes far beyond
redressing the harm the court actually foundTexass costs of issuing drivers
licenses. Even if the district courts unsupported findings of harm regarding those
costs were accurate, those findings could not possibly justify injunctive relief in
other States, especially where the amici States stand before this Court asserting that
we welcome the immigration directives and expect to benefit from them.
2.

A Stay Will Not Injure Plaintiffs And Is In The Public Interest

As detailed above, States will benefit from the immigration directives, not

suffer harm. For that reason, a stay will not injure Plaintiffs. A stay is also in the

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public interest because it will allow the directives to take effect and let millions of
undocumented immigrants begin to come out of the shadows, work legally,
increase their earnings, and better contribute to their families and States.
3.

At The Very Least, A Stay Is Warranted As To Non-Plaintiff States

Although the district courts injunction should be stayed in its entirety for

the reasons stated above, in the alternative the amici States ask that the Court stay
the injunction outside of Texas, or at least outside of the Plaintiff States. As
detailed above, in light of the complete absence of even a claim of harm in the nonPlaintiff States, there is no basis for forcing the injunction on us.
IV.

CONCLUSION

The federal governments immigration directives will benefit States, not

harm them. The district court erred in crediting Plaintiffs unsupported assertions
to the contrary and in relying on evidence related solely to Texas to justify a
nationwide injunction. The amici States respectfully ask this Court to stay the
district courts order so that we may begin to enjoy the benefits of these reforms.
RESPECTFULLY SUBMITTED this 12th day of March 2015.
ROBERT W. FERGUSON
Attorney General

Anne E. Egeler, WSBA 20258

Deputy Solicitor General

/s Noah G. Purcell
Noah G. Purcell, WSBA 43492
Solicitor General
Counsel of Record
[email protected]

Washington Office of Attorney General

PO Box 40100
Olympia, WA 98504-0100
360-753-6200 (office)
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Kamala D. Harris
California Attorney General
1300 I Street
Sacramento, CA 95814

Brian E. Frosh
Maryland Attorney General
200 Saint Paul Place
Baltimore, MD 21202

George Jepsen
Connecticut Attorney General
55 Elm Street
Hartford, CT 06106

Maura Healey
Massachusetts Attorney General
One Ashburton Place
Boston, MA 02108

Matthew P. Denn
Delaware Attorney General
820 N French Street 6th Floor
Wilmington, DE 19801

Hector H. Balderas
New Mexico Attorney General
PO Drawer 1508
Santa Fe, NM 87504-1508

Karl A. Racine
Dist. of Columbia Attorney General
441 4th Street NW Suite 1145 N
Washington, D.C. 20001

Eric T. Schneiderman
New York Attorney General
120 Broadway 25th Floor
New York, NY 10271

Russell A. Suzuki
Hawaii Attorney General
425 Queen Street
Honolulu, HI 96813

Ellen F. Rosenblum
Oregon Attorney General
1162 Court Street NE
Salem, OR 97301

Lisa Madigan
Illinois Attorney General
100 W Randolph Street 12th Floor
Chicago, IL 60601

Peter F. Kilmartin
Rhode Island Attorney General
150 S Main Street
Providence, RI 02903

Thomas J. Miller
Iowa Attorney General
1305 E Walnut Street
Des Moines, IA 50319

William H. Sorrell
Vermont Attorney General
109 State Street
Montpelier, VT 05609-1001

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CERTIFICATE OF SERVICE

I certify, under penalty of perjury under the laws of the state of Washington,
that on this date I have caused a true and correct copy of Brief Of The Amicus
States Of Washington, California, Connecticut, Delaware, Hawaii, Illinois, Iowa,
Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, and
Vermont, and the District of Columbia In Support Of Motion To Stay District
Court Preliminary Injunction to be served via the Courts ECF to parties listed on
the ECF system for this case, and to the following via U.S. Mail, postage paid:
Kyle R. Freeny
Civil Division, Federal Programs Branch
U.S. Department of Justice
P.O. Box 883
Washington, D.C. 20044
DATED at Olympia, Washington this 12th of March 2015.
/s Noah G. Purcell
Noah G. Purcell, WSBA 43492
Solicitor General