Dept. of Homeland Security v. University of California Regents Brief of Amicus Curiae

    Nos.18-587, 18-588, AND 18-589

In The

Supreme Court of tt)e ®ntteb ls>tate£

Department of Homeland Security, et al.
Petitioners,

v.

Regents of the university of California, et al.
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Ninth Circuit

BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC., AND LATINOJUSTICE PRLDEF 

IN SUPPORT OF RESPONDENTS

SHERRILYN A. IFILL 
Director-Counsel

Janai S. Nelson 
Samuel Spital 
Natasha Merle*
Raymond Aud ain 
Cara McClellan 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200 
nmerle@naacpldf.org

* Counsel of Record

Daniel Harawa 
Of Counsel

NAACP Legal Defense & 
Educational Fund, Inc. 
700 14th St, NW Suite 600 
Washington, DC 20005

Counsel for Amicus Curiae 
NAACP Legal Defense & 
Educational Fund, Inc

October 4, 2019

mailto:nmerle@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................... ii

INTERESTS OF AMICUS CURIAE............................ 1

INTRODUCTION AND SUMMARY OF
ARGUMENT.................................................................... 3

ARGUMENT.................................................................... 7

I. Respondents’ Intentional Racial
Discrimination Claim is Cognizable......................7

A. Respondents’ Equal Protection Claim 
Challenges a General Policy Decision,
Which Should be Reviewed Under the 
Arlington Heights Framework.........................9

B. Respondents’ Claim of Intentional
Racial Discrimination Meets the 
“Outrageous” Requirement of AADC ............13

II. The Lower Courts Correctly Concluded
that Respondents Plausibly Alleged an 
Equal Protection Claim Under Arlington 
Heights.........................................  17

A. The Factors Supporting an Inference of
Discrimination...................................  18

B. The Government Cannot Rely on Ipse
Dixit to Defeat an Inference of 
Discrimination..................................................23

PAGE



CONCLUSION



I l l

TABLE OF AUTHORITIES

Batalla Vidal v. Nielsen,
279 F. Supp. 3d 401 (E.D.N.Y. 2018).....................4

Batalla Vidal v. Nielsen,
291 F. Supp. 3d 260 (E.D.N.Y. 2018)..........passim

Bolling v. Sharpe,
347 U.S. 497 (1955)..................................................14

Brown v. Board of Education,
347 U.S. 483 (1954)................................................ ...1

Buck v. Davis,
137 S. Ct. 759 (2017)..................................................1

CASA de Maryland, Inc. v. Trump,
355 F. Supp. 3d 307 (D. Md. 2018).......................21

CASA de Maryland v. U.S. Dep’t of 
Homeland Sec.,
284 F. Supp. 3d 758 (D. Md. 2018).......................12

Centro Presente v. U.S. Dep’t of Homeland 
Sec.,
332 F. Supp. 3d 393 (D. Mass. 2018).................. 21

Chae Chan Ping v. United States,
130 U.S. 581 (1889)................................................ 16

City of Greenwood v. Peacock,
384 U.S. 808 (1966)................................................ 14

PAGE(S)

CASES



IV

City of Richmond v. J.A. Croson Co.
488 U.S. 469 (1989).............. .....................................8

Dep’t of Commerce u. New York,
139 S. Ct. 2551 (2019)...................................... 29, 30

Dep’t of Homeland Security v. Regents of the 
Univ. o f Calif.
(2019) (Nos. 18-587, 18-588, and 18-589)............. 5

Erickson v. Pardus,
551 U.S. 89 (2007).................................................... 27

Humphrey’s Executor v. United States,
295 U.S. 602 (1935)..................................................26

Korematsu v. United States
323 U.S. 214 (1944)....................................................8

McCreary County v. ACLU of Ky.,
545 U.S. 844 (2005)..................................................27

Miller-El v. Dretke,
545 U.S. 231.............................................................. 15

Nat’l Ass’n for the Advancement of Colored 
People v. U.S. Dep’t of Homeland Sec.,
364 F. Supp. 3d 568 (D. Md. 2019).......................21

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



V

Nino v. Johhnson,
No. 16-CV-2876, 2016 WL 6995563
(N.D. 111. Nov. 30, 2016)......................................... 17

U.S. ex rel Parco v. Morris,
426 F. Supp. 976 (E.D. Pa 1977).......................... 11

Pena-Rodriguez v. Colorado,
137 S. Ct. 855 (2017).................................................1

Plessy v. Ferguson,
163 U.S. 537 (1896)............................................ 1, 15

Ragbir u. Horn,an,
923 F.3d 53 (2d Cir. 2019).....................................16

Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008)...................................13

Ramos v. Nielsen,
336 F. Supp. 3d 1075 (N.D. Cal. 2018)................ 21

Regents of Univ. of Calif, v. U.S. Dep’t of 
Homeland Sec.,
279 F. Supp. 3d 1011 (N.D. Cal. 2018).................. 4

Regents of Univ. of Calif. v. U.S. Dep’t of 
Homeland Sec.,
298 F. Supp. 3d 1304 (N.D. Cal. 2018)........passim

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



V I

Regents of the Univ. of Calif, v. U.S. Dep’t of 
Homeland Sec.,
908 F.3d 476 (9th Cir. 2018)......................... passim

Reno v. American-Arab Anti-Discrimination 
Committee,
525 U.S. 471, 488-91 (1999)........................ 9, 10, 13

Rose v. Mitchell,
443 U.S. 545 (1979).............................................8, 14

Saget v. Trump,
345 F. Supp. 3d 287 (E.D.N.Y. 2018)...................21

Saget v. Trump,
375 F. Supp. 3d 280 (E.D.N.Y. 2019)............22, 26

Texas v. United States,
96 F. Supp. 3d 591 (S.D. Tex.), aff’d, 809 
F.3d 134 (5th Cir. 2015), aff’d, 136 S. Ct.
2271 (2016)................................................................ 28

Trump v. NAACP,
298 F. Supp. 3d 209 (D.D.C. 2018)........................ 4

United States v. Armstrong,
517 U.S. 456 (1996)..................................................13

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

CASES



United States v. Locke,
471 U.S. 84 (1985).........................................   5

Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp.,
429 U.S. 252 (1977)..................................................18

Washington v. Davis,
426 U.S. 229 (1976)................................................. 24

Yick Wo v. Hopkins,
118 U.S. 356 (1886)....................................................8

STATUTES

Act of July 14, 1870, ch. 254, §7, 16 Stat.
254...............................................................................15

Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103............... 15

Act of May 6, 1882 (Chinese Exclusion Act),
ch. 126, 22 Stat. 58...................................................16

Administrative Procedure iVct, 5 U.S.C. §
551 et seq.....................................................................4

Immigration Act of 1917, ch. 29, § 3, 39
Stat. 874.....................................................................16

vii
TABLE OF AUTHORITIES

(CONTINUED)

PAGE(S)

CASES



V l l l

TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

STATUTES

Immigration Act of 1924, ch. 190, § 11(a),
43 Stat. 153............................................................... 19

OTHER AUTHORITIES

A. Warner Parker, The Quota Provisions of 
the Immigration Act of 1924, 18 AM. J.
INT’L L. 737 (1924).................................................19

Bianca Quilantan & David Cohen, Trump 
tells Dem congresswomen: Go back 
where you came from , POLITICO (July 
14, 2019),
https://www.politico.eom/story/2019/07/l 
4/trump-congress-go-back-where-they- 
came-from-1415692.................................................20

Brief of Amicus Curiae NAACP Legal 
Defense and Educational Fund, Inc. In 
Support of Petitioners, Jean v. Nelson,
472 U.S. 846 (1985) (No.84-5240), 1985 
WL 670075. 2

https://www.politico.eom/story/2019/07/l


IX

TABLE OF AUTHORITIES
(CONTINUED)

OTHER AUTHORITIES

PAGE(S)

Christopher Flavelle, Lisa Friedman, and 
Peter Baker, Commerce Chief 
Threatened Firings at NOAA after 
Trump’s Dorian Tweets, Sources Say, 
NY Times,
https://www.nytimes.com/2019/09/09/cli
mate/hurricane-dorian-trump-
tweet.html (last updated Sept. 10, 2019)............ 27

David Sherfinski, Donald Trump: Protesters 
outside rally ‘thugs who were flying the 
Mexican flag,’ Wash. Times (May 25,
2016).......................................................................... 19

Def.’s Suppl. Submission and Further Resp. 
to Pl.’s Post-Briefing Notices, James 
Madison Project v. Dep’t of Justice, No. 
l:17-cv-00144-APM, (D.D.C. Nov. 13,
2017) ..... ...................................................................25

Elizabeth Landers, White House: Trump’s 
Tweets are ‘Official Statements’, CNN 
(June 6, 2017),
https://www.cnn.com/2017/06/06/politics/ 
trump-tweets-official-
statements/index.html...........................................25

https://www.nytimes.com/2019/09/09/cli
https://www.cnn.com/2017/06/06/politics/


TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

Josh Dawsey, Trump derides protections for 
immigrants from ‘shithole’ countries,
Wash. Post (Jan. 12, 2018),
https://www.washingtonpost.com/politics
/trump-attacks-protections-for-
immigrants-from-shithole-countries-in-
oval-office-meeting/2018/01/ll/bfc0725c-
f711-lle7-91af-
31ac729add94_story.html?utm_term=.b 
56fllcc896f............................................................... 20

Jugal K. Patel, Trump Wants Big Changes 
to Legal Immigration, Too — How Big?,
NY Times (Oct. 18, 2016),
http s ://ww w . nytime s .com/inter active/20
16/10/18/us/p olitics/trump -le gal-
immigration.html....................................................19

Karen Tumulty, President Trump isn’t a 
fan of dissent— inside or outside the 
government, Wash. Post (Feb. 1, 2017), 
https://www.washingtonpost.com/politics 
/president-trump-seeks-to-quash- 
dissent-inside-the-
government/2017/02/01/788bdefa-e7ed- 
He6-b82f-687d6e6a3e7c_story.html 27

https://www.washingtonpost.com/politics
https://www.washingtonpost.com/politics


XI

TABLE OF AUTHORITIES
(CONTINUED)

OTHER AUTHORITIES

PAGE(S)

Madeline Joung, What Is Happening at 
Migrant Detention Centers? Here’s What 
to Know, TIME,
https://time.com/5623148/migrant- 
detention-centers-conditions/ (last 
updated July 12, 2019)............................................22

Mallory Shelbourne, Trump to Congress:
‘Get ready to do your job ” on DACA, The 
Hill (Sept. 5, 2017),
https://thehill.com/homenews/administr 
ation/349173-trump-to-congress-get- 
ready-to-do-your-job-on-daca................................. 26

Memorandum For Federal Prosecutors 
Along the Southwest Border from the 
Att’y Gen. Sessions to Fed. Prosecutors 
Along the Sw. Border (Apr. 6, 2018) 
(https://perma.cc/H5JB-LFG9) ..............................23

Memorandum from Att’y Gen. Sessions to 
Acting DHS Sec’y Duke (Sept. 5, 2017) 
(https://www.dhs.g0v/sites/default/f1les/p 
ublications/17_0904_DOJ_AG-letter- 
DACA.pdf) 4, 26

https://time.com/5623148/migrant-detention-centers-conditions/
https://time.com/5623148/migrant-detention-centers-conditions/
https://thehill.com/homenews/administr
https://perma.cc/H5JB-LFG9
https://www.dhs.g0v/sites/default/f1les/p


xii
TABLE OF AUTHORITIES

(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

Memorandum from Janet Napolitano, See’y 
of Homeland Sec. to David V. Aguilar et 
al. (June 15, 2012)
httpsV/www.dhs.gov/sites/default/files/p 
ublications/s 1 -exercising-prosecutorial- 
discretion-individuals-who-came-to-us- 
as-children.pdf............................................................3

Michael Shear, Stoking Fears, Trump 
Defied Bureaucracy to Advance 
Immigration Agenda, NY Times (Dec.
23, 2017),
https://www.nytimes.com/2017/12/23/us/ 
politics/trump-immigration.html.......................... 20

Sophie Tatum, Trump: I ’ll revisit’ DACA if 
Congress can’t fix in 6 months, CNN, 
https://www.cnn.com/2017/09/05/politics/ 
donald-trump-revisit-daca/index.html 
(last updated Sept. 6, 2017)....................................26

Stephen Collinson, The law or the 
President: The Trump appointees’ 
dilemma, CNN (Apr. 9, 2019), 
http s ://w w w .cnn.com/2019/04/09/p olitic s / 
donald-trump-kirstjen-nielsen- 
immigration/index.html. 27

http://www.dhs.gov/sites/default/files/p
https://www.nytimes.com/2017/12/23/us/
https://www.cnn.com/2017/09/05/politics/


X l l l

TABLE OF AUTHORITIES
(CONTINUED)

OTHER AUTHORITIES

PAGE(S)

U.S. Dep’t of Justice, Office of Pub. Affairs,
Attorney General Sessions Delivers
Remarks on DACA (Sept. 5, 2017),
https://www.justice.gov/opa/speech/attor
ney-general-sessions-delivers-remarks-
daca............................................................................ 28

Z. Byron Wolf, The kiss of death in Trump’s 
cabinet is disagreeing with the boss,
CNN,
https://www.cnn.com/2018/04/03/politics/
trump-cabinet-kiss-of-death/index.html
(last updated Apr. 3, 2018)....................................27

Z. Byron Wolf, Trump’s attacks on Judge 
Curiel are still jarring to read, CNN 
(Feb. 27, 2017),
http s ://www. enn. com/2018/02/27/p olitics/ 
judge-curiel-trump-border- 
wall/index.html 19

https://www.justice.gov/opa/speech/attor
https://www.cnn.com/2018/04/03/politics/


TABLE OF AUTHORITIES
(CONTINUED)

PAGE(S)

OTHER AUTHORITIES

Zack Budryk, Trump’s renewed push for 
family separations led to Nielsen’s 
ouster: report, The Hill (Apr. 8, 2019), 
https://thehill.com/latino/437830-trump- 
has-pushed-to-resume-child-separations- 
for-months-report........................................ 26

https://thehill.com/latino/437830-trump-has-pushed-to-resume-child-separations-for-months-report
https://thehill.com/latino/437830-trump-has-pushed-to-resume-child-separations-for-months-report
https://thehill.com/latino/437830-trump-has-pushed-to-resume-child-separations-for-months-report


INTERESTS OF AMICUS CURIAE1

Amicus NAACP Legal Defense and 
Educational Fund, Inc. (“LDF”) is a non-profit, 
non-partisan law organization established under the 
laws of New York to assist Black people and other 
people of color in the full, fair, and free exercise of 
their constitutional rights. Founded in 1940 under the 
leadership of Thurgood Marshall, LDF focuses on 
eliminating racial discrimination in education, 
economic justice, criminal justice, and political 
participation. For nearly eighty years, LDF has 
fought to enforce the constitutional guarantee of 
equal protection for all persons. LDF represented 
Black parents and their children in Brown u. Board of 
Education, 347 U.S. 483 (1954), the historic case that 
dismantled the “separate but equal” doctrine 
established under Plessy u. Ferguson, 163 U.S. 537 
(1896), which relegated Black people, by law, to a 
position inferior to white citizens. Today, LDF 
continues to work to combat discrimination and 
pernicious racial stereotyping against people of all 
backgrounds. In 2016, LDF argued Buck v. Davis, 137 
S. Ct. 759, 778 (2017), in which this Court condemned 
defense counsel’s introduction of the “toxin” of racial 
bias into Mr. Buck’s capital sentencing hearing. That 
same year, LDF also filed an amicus brief in Pena- 
Rodriguez v. Colorado, 137 S. Ct. 855, 868, 870 (2017),

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state that no counsel for a party authored this brief in 
whole or in part and that no person other than amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. Pursuant to Supreme 
Court Rule 37.3, counsel for amicus curiae state that both 
parties have filed blanket consent to the filing of amicus briefs.



2

in which this Court recognized that a juror’s 
statements assigning pernicious racial stereotypes to 
a Mexican American defendant could, if left 
unchecked, result in the wrongful exercise of power by 
the State.

Consistent with amicus curiae’s opposition to 
all forms of discrimination, LDF has a strong interest 
in ensuring that the federal government abides by 
fundamental equal protection principles in its policies 
related to immigrants. LDF filed an amicus brief in 
Jean v. Nelson, 472 U.S. 846 (1985), explaining that 
the Court of Appeals had misapplied this Court’s 
precedent in concluding that a federal immigration 
policy tainted by racial discrimination was not subject 
to judicial review.2 Most recently, in January 2018, 
LDF filed NAACP v. United States Department of 
Homeland Security, on behalf of organizational 
plaintiffs challenging on equal protection grounds the 
Department of Homeland Security’s decision to 
rescind Temporary Protected Status (“TPS”) for 
Haitians in the United States. No. l:18-cv-00239- 
DKC (D. Md. Jan. 24, 2018).

Amicus LatinoJustice PRLDEF, founded in 
1972 as the Puerto Rican Legal Defense & Education 
Fund, is a national not-for-profit civil rights legal 
defense fund that has advocated for and defended the 
constitutional rights and the equal protection of all 
Latinos under the law. LatinoJustice champions an 
equitable society through advancing Latinx civil 
engagement, cultivating leadership, and protecting 
civil rights and equality in the areas of criminal

2 See Brief of Amicus Curiae NAACP Legal Defense and 
Educational Fund, Inc. In Support of Petitioners, Jean v. Nelson, 
472 U.S. 846 (1985) (No.84-5240), 1985 WL 670075 at *4.



3

justice, education, employment, fair 
housing, immigrants’ rights, language rights, 
redistricting and voting rights. Latino Justice 
vehemently opposes the Petitioner’s unlawful actions 
to rescind the Deferred Action for Childhood Arrivals 
(“DACA”) program, which has provided deferred 
status for thousands of Latinx students and 
DREAMers across the country. Thus, LDF and 
Latino Justice have the experience and expertise to 
assist the Court in its review of this important case.

INTRODUCTION AND 
SUMMARY OF ARGUMENT

On June 15, 2012, then-Secretary of Homeland 
Security (“DHS”) Janet Napolitano issued a 
memorandum establishing the DACA program.3 
Under DACA, individuals who were brought to the 
United States as children and meet specific criteria 
may request deferred action for a period of two years, 
subject to renewal. DACA designees must undergo 
rigorous screening, including biometric screening and 
criminal background checks, in order to be eligible for 
the program. In establishing DACA, DHS recognized 
that there are “certain young people who were 
brought to this country as children and know only this 
country as home[,]” and that federal immigration 
laws are not “designed to remove productive young 
people to countries where they may not have lived or 
even speak the language.” DACA Memo, at 1-2. The

3 Memorandum from Janet Napolitano, Sec’y of Homeland Sec. 
to David V. Aguilar et al. (June 15, 2012) 
https://www.dhs.gov/sites/default/files/publications/sl- 
exercising-prosecutorial-discretion-individuals-who-came-to-us- 
as-children.pdf [hereinafter DACA Memo].

https://www.dhs.gov/sites/default/files/publications/sl-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf
https://www.dhs.gov/sites/default/files/publications/sl-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf
https://www.dhs.gov/sites/default/files/publications/sl-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf


4

program has allowed nearly 700,000 young people, 
mostly Latinos and persons of Mexican heritage, to 
come out of the shadows, study and work without fear 
of removal.

On September 5, 2017, DHS abruptly
rescinded DACA by announcing that it would cease to 
accept new applications. It also announced it would 
only issue renewals for grantees whose deferrals 
expire before March 5, 2018, and only if they applied 
for renewal within one month of DHS’s 
announcement.4 Respondents challenged the
rescission of DACA under the Administrative 
Procedure Act (APA), 5 U.S.C. § 551 et seq., and on 
constitutional grounds. The district courts for the 
Northern District of California and Eastern District 
of New York denied in relevant part the Government’s 
motion to dismiss Respondents’ APA and
constitutional claims, and those courts granted 
Respondents’ motions for a preliminary injunction 
based on their APA claims.5 In addition, the District 
of Columbia district court denied in relevant part the 
Government’s motion for summary judgment and 
vacated the rescission of DACA.6

4 See Memorandum from Att’y Gen. Sessions to Acting DHS 
Sec’y Duke (Sept. 5, 2017)
(https://www.dhs.gov/sites/default/files/publications/17_0904_D 
OJ_AG-letter-DACA.pdf) [hereinafter DACA Rescission Memo].
5 See Regents of Univ. of Calif, v. U.S. Dep’t of Homeland. Sec., 
298 F. Supp. 3d 1304 (N.D. Cal. 2018); Batalla Vidal v. Nielsen, 
291 F. Supp. 3d 260 (E.D.N.Y. 2018); Regents of Univ. of Calif. v. 
U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 
2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d 401 (E.D.N.Y. 
2018).
6 See Trump v. NAACP, 298 F. Supp. 3d 209 (D.D.C. 2018).

https://www.dhs.gov/sites/default/files/publications/17_0904_D


5

Subsequently, the Ninth Circuit affirmed the 
California district court’s decision on the motion to 
dismiss and the preliminary injunction on APA 
grounds. Regents o f the Univ. o f Calif. v. U.S. Dep’t of 
Homeland Sec., 908 F.3d 476 (9th Cir. 2018). In a 
concurrence, Judge Owens explained that he would 
have held the APA claim to be not judicially 
re viewable, but that he would have remanded for 
consideration of whether the Plaintiffs’ equal 
protection claim would support a preliminary 
injunction, noting that the claim appeared 
“promising” based on the Plaintiffs’ allegations. Id. at 
523-24 (Owens, J., concurring).

This Court granted certiorari on the questions 
of: (1) whether the DHS’s decision to terminate DACA 
is judicially re viewable; and if so (2) whether the 
decision to terminate DACA is lawful. Dep’t of 
Homeland Security v. Regents of the Univ. of Calif. 
(2019) (Nos. 18-587, 18-588, and 18-589).

For the reasons stated by Respondents, the 
district courts correctly granted preliminary 
injunctions under the APA. Because those injunctions 
are supported by statutory grounds, this Court need 
not reach Respondents’ constitutional claims. See, 
e.g., United States v. Locke, 471 U.S. 84, 92 (1985). 
Nevertheless, because the Government has sought to 
limit judicial review of its racially discriminatory 
treatment of non-citizen U.S. residents, a response 
from amici is in order.

The Government contends this case involves a 
“discriminatory-enforcement claim,” which it claims 
is “not cognizable in the immigration context.” Pet’rs’ 
Aug. 19, 2019 Br. at 53 [hereinafter Pet’rs’ Br.]. Thus, 
according to the Government, the Administration’s



6

decision to rescind a program that protects from 
removal 700,000 persons brought to the United States 
as children is not subject to judicial scrutiny even if 
the rescission was motivated by racial animus. That 
is a breathtaking argument. It would mean the 
Article III courts could not review DACA’s rescission 
even if the Administration formally stated that the 
rescission was motivated by a desire to remove as 
many Latinos as possible from our country. Nor could 
the courts review an official federal policy to deport 
only non-citizens of color.

That is not, and cannot be, the law. The Fifth 
Amendment protects all persons living in the United 
States. If the equal protection component of that 
Amendment means anything, it means that racial 
discrimination must not infect federal policy 
judgments about whether to deport hundreds of 
thousands of individuals who came to the United 
States as children. And, as LDF pointed out over 30 
years ago in Jean, and as this Court has recognized in 
other contexts, the harms from state-sponsored racial 
discrimination “extend [] beyond the direct victims” of 
the discrimination.7 Such discrimination “corrupt[s] 
our governmental institutions, stigmatize [s] all 
members of the disfavored group and incitefs] further 
discrimination.” Id. If unchecked by the courts, such 
discrimination will also undermine public confidence 
in the courts as neutral arbiters of the rule of law.

The Government insists that, even if this claim 
is reviewable, Respondents have not stated an equal 
protection claim. In the Government’s view, this 
Court should ignore the facts that over ninety percent

7 See Brief of Amicus Curiae NAACP Legal Defense and 
Educational Fund, Inc., supra note 2, at *9.



7

of DACA’s beneficiaries are Latino—the vast majority 
of whom are of Mexican heritage—and that the 
President has repeatedly made statements evincing 
his animus against Mexican and Latino immigrants. 
But this Court’s precedent does not authorize the 
Government to disregard facts because they are 
detrimental. Instead, the President’s alarming 
statements evincing animus against Latino 
immigrants and other immigrants of color; the 
influence he exerts over the members in his cabinet; 
the fact that the vast majority of DACA’s beneficiaries 
are Latino; and the unusual procedures employed by 
the Administration in rescinding DACA, all support 
an inference that the Administration’s rescission of 
DACA was motivated, at least in part, by racial 
discrimination. Therefore, to the degree this Court 
reaches the issue, it should recognize that 
Respondents’ equal protection claims are “promising,” 
as Judge Owens recognized. They are certainly 
plausible claims, the assertion of which was sufficient 
to defeat the Government’s motion to dismiss.

ARGUMENT

I. Respondents’ Intentional Racial
Discrimination Claim is Cognizable.

The United States has taken the position that 
Respondents’ equal protection challenge to the 
rescission of DACA is “not cognizable.”8 In essence, 
the Government argues that the Administration’s 
policy change, the impact of which falls almost 
completely on Latinos and individuals of Mexican 
heritage, cannot be reviewed by the judiciary for

8 Petrs’ Br. at 53.



8

discriminatory intent. That argument runs contrary 
to our most fundamental constitutional principles and 
to the rule of law itself. No principle is more sacred to 
our democracy than the prohibition on racial 
discrimination in federal government policy. See City 
of Richmond u. J.A. Croson Co. 488 U.S. 469, 501 
(1989) (citation omitted). The courts are tasked with 
ensuring that state-sponsored discriminatory policies 
are not allowed to stand.

The Government attempts to create a category 
of cases that would be immune from equal protection 
review by courts: challenges to immigration policies. 
This has never been true. It is well established that 
equal protection “provisions are universal in their 
application, to all persons within the territorial 
jurisdiction, without regard to any differences of race, 
of color, or of nationality.” Yick Wo u. Hopkins, 118 
U.S. 356, 369 (1886). The country’s extensive history 
of racial classifications suggests that judicial 
deference to executive policies is not compatible with 
the constitutional promise of equal protection. See 
Korematsu v. United States 323 U.S. 214, 235-40 
(1944) (Murphy, J., dissenting).

Though the executive has broad discretion in 
implementing immigration policy, that discretion is 
not so broad to allow the executive to engage in that 
which is “odious in all aspects,” Rose v. Mitchell, 443 
U.S. 545, 555 (1979), i.e., government-sponsored 
racial discrimination.



9

A. Respondents’ Equal Protection Claim 
Challenges a General Policy Decision, 
Which Should Be Reviewed Under the 
Arlington Heights Framework.

The Government argues that Respondents’ 
equal protection challenge is, in actuality, a selective- 
prosecution claim, and the race discrimination 
alleged by Respondents is not sufficiently 
“outrageous” to warrant review under the selective- 
prosecution standard. See Pet’rs’ Br. at 54. As each 
lower court to address the issue found, this argument 
is without merit. First, Respondents do not raise a 
selective-enforcement claim subject to a higher 
pleading standard, but instead raise an equal 
protection challenge to the executive’s policy 
judgment about how to apply the nation’s 
immigration laws, which should be analyzed under 
the Arlington Heights framework. Second, even if this 
were a selective-prosecution challenge, 
discrimination on the basis of race is the epitome of 
“outrageous” government conduct that presents a 
judicially cognizable claim.

The Government’s argument relies on Reno v. 
American-Arab Anti-Discrimination Committee, in 
which this Court stated that selective-enforcement 
claims are rarely viable in the deportation context. 
525 U.S. 471, 488-91 (1999) [hereinafter AADC\. In 
that case, non-citizens claimed that, although they 
had violated the immigration laws, the Government 
had impermissibly targeted and chosen them for 
deportation because of their affiliation with an 
alleged terrorist group. The Court rejected their 
claims, noting that selective-enforcement defenses to



10

deportation proceedings are ill-suited for judicial 
review. See id. at 490—91.

Respondents’ challenge to the DACA 
rescission, however, is not raised “as a defense 
against [ ] deportation” and is not a claim of “selective 
enforcement.” Id. Further, as Respondents note, some 
of the plaintiffs in this case are states, and their 
claims plainly do not implicate selective enforcement 
principles. Br. of New York, et al. at 56. Therefore, 
the necessary predicate for the application of AADC’s 
heightened standard is not applicable, and its 
concerns about “invad[ing] a special province of the 
Executive” do not apply. Id. at 489.

Respondent’s equal protection allegation is a 
freestanding claim that the Administration, 
motivated by race discrimination, made a sweeping 
policy decision to rescind protections to all 
approximately 700,000 immigrants brought here as 
children. It is not a challenge to a case-by-case 
decision made by DHS as to which immigrants should 
have their cases prosecuted and which should not, but 
a challenge that the Government has made a 
fundamental policy judgment about how to apply our 
nation’s immigration laws in a manner infected by 
racial discrimination. In short, the “substantial 
concerns that make the courts properly hesitant to 
examine” individual prosecutorial decisions do not 
obtain here. Id. at 490 (quoting Wayte v. United 
States, 470 U.S. 598, 607-08 (1985)).

Indeed, key factors the AADC  Court identified 
as making courts hesitant to review selective- 
prosecution claims have no application when, as here, 
the challenge is to a categorical (and public) 
government policy decision as to how to apply our



11

immigration laws. See id. (referring to the “strength 
of the case,” the “prosecution’s general deterrence 
value,” potentially “revealing the Government’s 
enforcement policy,” and the risk of chilling law 
enforcement by subjecting a prosecutor’s motives to 
outside inquiry, as reasons why courts should be 
hesitant in reviewing selective-enforcement claims).

The Government’s argument that this is a case 
of prosecutorial “discretion” fails on the plain 
meaning of that word. Under the DACA policy 
“‘discretion’ was exercised favorably in all cases of a 
certain kind and then, after repeal of the regulation, 
unfavorably in each such case.” U.S. ex rel Parco v. 
Morris, 426 F. Supp. 976, 984 (E.D. Pa 1977). This is 
not discretion; it is a policy concerning a category of 
people. The DACA rescission may eventually lead to 
the prosecution and removal of undocumented 
immigrants, who may challenge the decision to 
prosecute their case in lieu of others, but that day is 
not today. Today, Respondents are challenging 
whether the Administration’s categorical decision to 
end a nationwide immigration program was 
motivated by race discrimination.

The Government also makes the half-hearted 
suggestion that judicial review of the 
Administration’s discriminatory rescission of DACA 
would “‘ [impact] foreign relations.’” Pet’rs’ Br. at 54 
(citation omitted). But the Government has never 
explained what “foreign relations” interest is 
implicated by judicial review of Respondents’ claim 
that the rescission of DACA was motivated by racial 
discrimination. In rescinding DACA, the 
Administration made no mention of foreign relations 
as a basis for its decision. Notably, this case does not



12

involve decisions about foreign nationals entering the 
United States; indeed, the only beneficiaries of DACA 
are longstanding residents of this country who have a 
Fifth Amendment right not to be subject to racial 
discrimination by the federal government.

Each lower court correctly rejected the 
Government’s attempt to import AADC’s heightened 
selective prosecution standard to the DACA 
rescission.9 As one court explained, “Plaintiffs’ claims 
cannot fairly be characterized as selective- 
prosecution claims because they do not ‘implicate the 
Attorney General’s prosecutorial discretion—that is, 
in this context, his discretion to choose to deport one 
person rather than another among those who are 
illegally in this country.’” Regents of the Univ. of Calif, 
v. U.S. Dep’t of Homeland Sec., 298 F. Supp. 3d 1304, 
1314 n.3 (N.D. Cal. 2018) (quoting Kwai Fun Wong v. 
United States, 373 F.3d 952, 970 (9th Cir. 2004)). 
Rather, Respondents “allege[d] that the agency’s 
decision to end a nationwide deferred action program 
was motivated by racial animus towards a protected 
class[,]” an allegation subject to review under the 
traditional Arlington Heights framework. Id.

B. Respondents’ Claim of Intentional 
Racial Discrimination Meets the 
“Outrageous” Requirement of AADC.

Even if this were a selective prosecution case 
(and it is not), that would not end the Court’s inquiry.

9 Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260 (E.D.N.Y. 2018); 
CASA de Maryland v. U.S. Dep’t of Homeland Sec., 284 F. Supp. 
3d 758 (D. Md. 2018); and Regents of the Univ. of Calif, v. U.S. 
Dep’t of Homeland Sec., 298 F. Supp. 3d 1304 (N.D. Cal. 2018).



13

AADC does not support the Government’s broad 
assertion that Respondents’ claims are “not 
cognizable” if they are deemed a selective- 
enforcement challenge. Pet’rs’ Br. at 53.

The Court in AADC stated that in many cases 
“deportation is sought simply because the time of 
permitted residence in this country has expired . . .” 
and held that the government “does not offend the 
Constitution by deporting [a non-citizen] for the 
additional reason that it believes him to be a member 
of an organization that supports terrorist activity.” 
AADC, 525 U.S. at 491-92. Yet, the Court left open 
“the possibility of a rare case in which the alleged 
basis of discrimination is so outrageous” that a 
selective-enforcement claim could be maintained. Id. 
at 491.

In addressing the selective-enforcement claim 
in AADC, this Court drew heavily on its prior case law 
analyzing selective-prosecution claims in the criminal 
law context. And, in that context, this Court has 
expressly recognized that a “prosecutor’s discretion is 
subject to constitutional constraints.” United States v. 
Armstrong, 517 U.S. 456, 464 (1996) (internal 
quotation marks omitted). A prosecutor’s discretion 
may not be “based on an unjustifiable standard such 
as race, religion, or other arbitrary classification.” Id. 
(internal quotation marks omitted); see also Rajah v. 
Mukasey, 544 F.3d 427, 437 (2d Cir. 2008) (stating if 
immigration laws were selectively enforced against 
petitioners because of their religion, ethnicity, 
gender, and race, “selective prosecution based on an 
animus of that kind would call for some remedy”) 
(internal citation removed).



14

Racial animus represents the paradigmatic 
example of “outrageous” discrimination that requires 
judicial review even under AADC. Indeed, this Court 
has used that very term to describe racially motivated 
prosecutions. See City of Greenwood v. Peacock, 384 
U.S. 808, 828 (1966) (“If, as they allege, [petitioners] 
are being prosecuted on baseless charges solely 
because of their race, then there has been an 
outrageous denial of their federal rights, and the 
federal courts are far from powerless to redress the 
wrongs done to them.”). As this Court has long 
recognized, “ [discrimination on the basis of race [is] 
odious in all aspects,” and “was the primary evil” at 
which the Reconstruction Amendments, including the 
Equal Protection Clause, “were aimed.” Rose, 443 
U.S. at 554, 555. The Fifth Amendment’s due process 
clause means the same principles prohibiting racial 
discrimination by state officials apply to the federal 
government. Bolling v. Sharpe, 347 U.S. 497, 499-50 
(1955). Indeed, “it would be unthinkable that the 
same Constitution would impose a lesser duty on the 
Federal Government” not to engage in racial 
discrimination. Id. at 500.

Further, as LDF pointed out in Jean v. Nelson, 
the harms from official acts of racial discrimination 
extend beyond the direct victims of that 
discrimination. State-sponsored discrimination on 
the basis of race or ethnicity “corrupt[s] our 
governmental institutions, stigmatize [s] all members 
of the disfavored group and incite [s] further 
discrimination.”10 As Justice Harlan recognized long 
ago, racially discriminatory government policies send

10 See Brief of Amicus Curiae NAACP Legal Defense and 
Educational Fund, Inc., supra note 2, at *9.



15

a message that people of color “are . . . inferior and 
degraded” so as to justify the discrimination. Plessy u. 
Ferguson, 163 U.S. at 560 (Harlan, J., dissenting). If 
left unchecked by the courts, such discriminatory 
policies consign people of color to an inferior status 
and reinforce racist ideas about them. See also Miller- 
El v. Dretke, 545 U.S. 231, 237-8 (recognizing that, 
when a prosecutor discriminates against prospective 
jurors on the basis of race, the harm is not only to the 
excluded juror or the defendant; rather, people of 
color “are harmed more generally, for prosecutors 
drawing racial lines in picking juries establish ‘state- 
sponsored group stereotypes rooted in, and reflective 
of, historical prejudice[.]”’) (citation omitted). Thus, 
when the Government is motivated by racial 
discrimination in publicly canceling a program that 
protects hundreds of thousands of people from 
removal, it sends an unmistakable message of racial 
hierarchy to society as a whole.

That message of racial hierarchy has particular 
resonance given the overt racism that has long 
plagued our nation’s immigration and naturalization 
laws. In 1790, the country’s first immigration law 
restricted the ability to become naturalized citizens to 
“free white person[s].”n It was not until 1870 that 
Black people were permitted to naturalize as citizens, 
despite having been brought to the United States as 
slaves beginning in 1619.11 12 The notorious Chinese 
Exclusion Act of 1882 forbade people of Chinese

11 Act of Mar. 26, 1790, ch. 3, § 1. 1 Stat. 103, 103 (repealed by 
act of Jan. 29, 1795, ch. 20; however, this act also limited the 
ability to be naturalized as a citizen to “free white personfs]).
12 Act of July 14, 1870, ch. 254, §7, 16 Stat. 254, 256.



16

heritage from entering the country entirely,13 and the 
Immigration Act of 1917 expanded that prohibition to 
encompass immigrants from most of Asia.14 In the 
notorious Chinese Exclusion Cases, this Court 
sanctioned such blatant discrimination, holding that 
no court could review the federal government’s 
determinations that “foreigners of a different race in 
this country” were “dangerous” and would not 
“assimilate with us” (the “us” clearly referring to 
white Americans).15

Plaintiffs allege the rescission of DACA is 
grounded in the same kind of bigotry that long 
characterized our immigration and naturalization 
laws. Such allegations are entitled to judicial review. 
This is particularly true here, because DACA 
recipients have a substantial interest in not being 
deported and maintaining their DACA protections, 
and because the Government’s interests are “less 
pronounced than in AADC,” given it has not alleged 
any threat to safety and security considerations. See 
Ragbir v. Homan, 923 F.3d 53, 73 (2d Cir. 2019) 
(noting factors that support a claim of “outrageous” 
discrimination).

By contrast, the Government’s sweeping 
interpretation of AADC  would prohibit a court from 
reviewing an executive branch decision relating to 
immigration, even if that decision displayed blatant 
race discrimination. For example, under the 
Government’s view, even if the Administration were 
to create a policy prioritizing the deportation of Black

13 Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 22 Stat. 
58.
14 Ch. 29, § 3, 39 Stat. 874, 875-76 (repealed 1952).
15 See Chae Chan Ping u. United States, 130 U.S. 581, 606 (1889).



17

non-citizens based solely on their race, that decision 
would not be reviewable by any court. But cf. Nino u. 
Johhnson, No. 16-CV-2876, 2016 WL 6995563, at *5 
(N.D. 111. Nov. 30, 2016) (citing LaGuerre v. Reno, 164 
F.3d 1035, 1040 (7th Cir. 1998) (“Suppose the [Board 
of Immigration Appeals] ordered an alien deported on 
the basis of a criminal conviction that it knew had 
been vacated, but it didn’t care because the alien was 
black. We have expressed doubt that Congress 
intended to forbid such orders to be challenged in 
court”)).

The Government’s position is at war with the 
plain text of the Fifth Amendment, and the basic 
principles of the rule of law that underlie our 
constitutional democracy. It must be rejected, and 
forcefully so.

II. The Lower Courts Correctly Concluded that
Respondents Plausibly Alleged an Equal
Protection Claim Under Arlington Heights.

The lower courts correctly held that 
Respondents plausibly alleged that the rescission of 
DACA violated the equal protection component of the 
Fifth Amendment’s Due Process Clause. See Regents 
of the Univ. of Calif, v. U.S. Dep’t of Homeland Sec., 
908 F.3d 476 (9th Cir. 2018); Regents of Univ. of Calif, 
v. U.S. Dep’t of Homeland Sec., 298 F. Supp. 3d 1304 
(N.D. Cal. 2018); Batalla Vidal v. Nielsen, 291 F. 
Supp. 3d 260 (E.D.N.Y. 2018). In the Ninth Circuit 
decision, Judge Owens wrote a concurrence 
recognizing that Respondents’ allegations of 
unconstitutional race discrimination were 
“promising” and would likely succeed on remand if the 
Government failed to rebut the presumption of



18

unconstitutional animus. Regents, 908 at 523-24 
(Owens, J., concurring). The Ninth Circuit majority 
noted that it “ [did] not disagree” with this 
assessment, stating Respondents’ equal protection 
claim was an alternative ground for affirming the 
injunction. Id. at 520, n.31.

In holding Respondents plausibly alleged equal 
protection claims, these courts, applying the 
Arlington Heights16 framework, relied on three key 
factors. Those factors strongly support an inference 
that the rescission of DACA was motivated, at least 
in part, by racial discrimination.

A. The Factors Supporting an Inference of 
Discrimination.

First, the lower courts emphasized that 
rescission of DACA would disproportionately impact 
Latinos and individuals of Mexican heritage. See 
Regents, 908 F.3d at 518-19; Regents, 298 F. Supp. 3d 
at 1314; Batalla, 291 F. Supp. 3d at 274-75. Indeed, 
Latinos account for at least 93 percent of DACA 
recipients. Regents, 908 F.3d at 518.

Second, the courts highlighted Respondents’ 
allegations that before and after the election, the 
President made statements evincing animus towards 
Latinos and persons of Mexican ancestry. See 
Regents, 908 F.3d at 518-19; Regents, 298 F. Supp. 3d 
at 1314; Batalla, 291 F. Supp. 3d at 276. For example, 
the President called Mexican immigrants “criminals, 
drug dealers, and rapists” ; the President derided 
people who protested at one of his rallies as “thugs 16

16 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 
252 (1977).



19

who were flying the Mexican flag” ;17 the President 
stated a federal judge of Mexican descent could not 
fairly preside over a lawsuit in which he was a party 
because “ [h]e’s a Mexican” despite the fact that the 
judge is American18; and the President has repeatedly 
labeled Latino immigrants “criminals, ‘animals,’ and 
‘bad hombres.’” Batalla, 291 F. Supp. 3d at 276 
(citation omitted).

Indeed, beyond these examples, President 
Trump has repeatedly stated a preference for white 
immigrants over immigrants of color. In August 2016, 
then-candidate Trump expressed his desire to return 
to the 1924 quota system to maintain “historical 
norms.”19 The 1924 system was, in the words of its 
proponent, then-Senator Reed of Pennsylvania, “a 
scientific plan for keeping America American,”20 by 
sharply limiting non-white immigration.21 As

17 David Sherfinski, Donald Trump: Protesters outside rally 
'thugs who were flying the Mexican flag,' Wash. Times (May 25, 
2016),
https://www.vvashingtontimes.com/news/2016/niay/25/trunip-
protesters-rally-thugs-waving-mexican-flag/.
18 See Z. Byron Wolf, Trump’s attacks on Judge Curiel are still
jarring to read, CNN (Feb. 27, 2017),
https://www.cnn.com/2018/02/27/politics/judge-curiel-trump- 
border-wall/index.html (providing an excerpt of the President’s 
interview during which he made the remark).
19 See, e.g., Jugal K. Patel, Trump Wants Big Changes to Legal 
Immigration, Too — How Big?, NY Times (Oct. 18, 2016), 
https://www.nytimes.com/interactive/2016/10/18/us/politics/tru 
mp-legal-immigration.html.
20 A. Warner Parker, The Quota Provisions of the Immigration 
Act of 1924, 18 AM. J. INT’L L. 737, 740 (1924).
21 See Immigration Act of 1924, ch. 190, § 11(a), 43 Stat. 153, 159 
(repealed 1952) (tying immigration quotas to the total number of 
people of each nationality in the United States as of the 1890

https://www.vvashingtontimes.com/news/2016/niay/25/trunip-
https://www.cnn.com/2018/02/27/politics/judge-curiel-trump-border-wall/index.html
https://www.cnn.com/2018/02/27/politics/judge-curiel-trump-border-wall/index.html
https://www.nytimes.com/interactive/2016/10/18/us/politics/tru


2 0

President, upon learning that 15,000 Haitians and 
40,000 Nigerians had received visas to enter the 
United States, Mr. Trump reportedly exclaimed that 
Haitians “all have AIDS,” and that, upon seeing the 
United States, Nigerians would never return to their 
“huts” in Africa.22 Then, during a meeting with 
several U.S. Senators, the President disparaged a 
draft immigration plan that protected people from 
Haiti, El Salvador, and some African countries, 
asking, “Why are we having all these people from 
shithole countries come here?”23 At the same meeting, 
President Trump expressed his preference for more 
immigrants from places like Norway.24 The President 
has even gone so far as to suggest that members of 
Congress who are women of color are not real 
Americans. In August of 2019, at a public rally, 
President Trump said that four United States 
congresswomen of color could “go back” to the 
countries “from which they came,” despite the fact 
that all four women are (of course) U.S. citizens.25

census, thereby sharply limiting quotas for non-white 
immigrants).
22 Michael Shear, Stoking Fears, Trump Defied Bureaucracy to 
Advance Immigration Agenda, NY Times (Dec. 23, 2017), 
https://www.nytimes.com/2017/12/23/us/politics/trump- 
immigration.html.
23 Josh Dawsey, Trump derides protections for immigrants from
‘shithole’ countries, Wash. Post (Jan. 12, 2018),
https://www.washingtonpost.com/politics/trump-attacks- 
protections-for-immigrants-from-shithole-countries-in-oval- 
office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af- 
31ac729add94_story.html?utm_term=.b56fllcc896f.
24 Id.
25 Bianca Quilantan & David Cohen, Trump tells Dem 
congresswomen: Go back where you came from, POLITICO (July

https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html
https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html
https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac729add94_story.html?utm_term=.b56fllcc896f
https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac729add94_story.html?utm_term=.b56fllcc896f
https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac729add94_story.html?utm_term=.b56fllcc896f
https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/ll/bfc0725c-f711-lle7-91af-31ac729add94_story.html?utm_term=.b56fllcc896f


2 1

The Trump Administration’s policies are 
consistent with the President’s persistent rhetoric 
employing odious stereotypes to describe immigrants 
of color, and the countries from which they emigrated, 
and questioning the citizenship of non-white public 
officials. In addition to rescinding DACA, the 
Administration rescinded Temporary Protected 
Status (“TPS”)—which provides legal status for 
nationals from other countries to remain in the 
United States as a result of natural disasters, war, or 
other extraordinary conditions in their home 
countries—for nationals of El Salvador, Haiti, 
Nicaragua, Sudan, Nepal and Honduras. As several 
courts have recognized, plaintiffs challenging these 
TPS rescissions have plausibly alleged that the 
Administration was motivated by racial 
discrimination.26 In one of those cases, after a 4-day 
bench trial, the district court granted a preliminary 
injunction and observed the following with respect to 
the rescission of Haitian TPS:

As President John Adams once observed,
“Facts are stubborn things; and

14, 2019, 09:15 AM),
https://www.politico.com/story/2019/07/14/trump-congress-go- 
back-where-they-came-from-1415692.
26 Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1098 (N.D. Cal. 2018) 
(TPS plaintiffs plausibly stated claim that terminations were 
motivated by racial animus): Saget v. Trump, 345 F. Supp. 3d 
287, 303 (E.D.N.Y. 2018) (same); Centro Presente v. U.S. Dep’t of 
Homeland Sec., 332 F. Supp. 3d 393, 413 (D. Mass. 2018) (same): 
CASA de Maryland, Inc. v. Trump, 355 F. Supp. 3d 307, 326 (D. 
Md. 2018) (same); Natl Ass’n fo r  the Advancement o f  
Colored People v. U.S. Dep’t of Homeland Sec., 364 F. Supp. 3d 
568, 578 (D. Md. 2019) (same).

https://www.politico.com/story/2019/07/14/trump-congress-go-back-where-they-came-from-1415692
https://www.politico.com/story/2019/07/14/trump-congress-go-back-where-they-came-from-1415692


2 2

whatever may be our wishes, our 
inclinations, or the dictates of our 
passion, they cannot alter the state of 
facts and evidence.-’ Based on the facts 
on this record, and under the factors 
prescribed by Arlington Heights, there is 
both direct and circumstantial evidence 
[that] a discriminatory purpose of 
removing non-white immigrants from 
the United States was a motivating 
factor behind the decision to terminate 
TPS for Haiti.

Saget v. Trump, 375 F. Supp. 3d 280, 374 (E.D.N.Y. 
2019).

The Administration has also implemented 
widely condemned family separation policies that 
resulted in thousands of children of tender age— 
many of them babies and toddlers—being forcibly 
removed from their parents and held in detention 
centers, where conditions have been described by 
official observers as “unsanitary” and “dangerously] 
overcrowded].”27 The immigrants affected by these 
policies are overwhelmingly from Mexico and Central 
American countries, and the Administration has 
unapologetically admitted that these policies were 
designed to deter these families from seeking refuge

27 Madeline Joung, What Is Happening at Migrant Detention 
Centers? H ere’s What to Know, TIME,
https://time.com/5623148/migrant-detention-centers-conditions/
(last updated July 12, 2019).

https://time.com/5623148/migrant-detention-centers-conditions/


23

in the United States.28 In sum, the statements 
pointed to by the courts below represent only a portion 
of the President’s statements expressing animus 
against immigrants of color, and his Administration 
has implemented a variety of policies reflecting that 
animus.

Third, the lower courts pointed to the “unusual 
history” leading up to the Government’s decision to 
rescind DACA. See Regents, 908 F.3d at 519; Regents, 
298 F. Supp. 3d at 1315. Namely, “DACA received 
reaffirmation by [the Department of Homeland 
Security] as recently as three months before the 
rescission, only to be hurriedly cast aside on what 
seems to have been a contrived excuse (its purported 
illegality).” Regents, 908 F.3d at 519 (quotation marks 
omitted).

These facts together strongly support an 
inference that the Trump Administration’s rescission 
of DACA violated the Fifth Amendment because it 
was motivated, at least in part, by racial 
discrimination against non-white immigrants.

B. The Government Cannot Rely on Ipse 
Dixit to Defeat an Inference of 
Discrimination.

The Government challenges the lower courts’ 
rulings on three grounds. See Pet’rs’ Br. at 52-57. 
First, it tries to diminish the import of the disparate 
impact that the rescission of DACA has on Latinos 
and persons of Mexican heritage by arguing that

28 See Memo, for Federal Prosecutors Along the Southwest 
Border from the Att’y Gen. Sessions to Fed. Prosecutors Along 
the Sw. Border (Apr. 6, 2018) (https://perma.cc/H5JB-LFG9).

https://perma.cc/H5JB-LFG9


24

“given the United States’ natural immigration 
patterns, the disparate impact of the rescission of 
DACA is neither surprising nor illuminating of the 
agency’s motives.” Id. at 54-55.

This argument defies both logic and precedent. 
Disparities do not become less significant because 
they mostly affect minorities. On the contrary, 
“particularly . . .  in the case of governmental action,” 
gross disparities such as those here are powerful 
evidence of discrimination because “normally [an] 
actor is presumed to have intended the natural 
consequences of his deeds.” Washington v. Davis, 426 
U.S. 229, 253 (1976) (Stevens, J., concurring). That 
the Government could predict the rescission of DACA 
would overwhelmingly impact Latinos and persons of 
Mexican heritage bolsters the plausibility of 
Respondents’ intentional discrimination claims— 
there was no question about which groups of 
immigrants the Government’s actions would affect.

Next, the Government avers that the 
President’s discriminatory “statements are equally 
irrelevant.” Pet’rs’ Br. at 55. This is so, claims the 
Government, because “the relevant decisionmakers 
were Duke and Nielsen [Secretaries of Homeland 
Security].” Id. It goes on to assert that the President’s 
statements do not “even addressQ DACA recipients, 
save for one that “reveals nothing more than the 
obvious fact that DACA has been an important part 
of legislative negotiations on immigration reform”— 
the President’s tweet that “ [t]he Democrats have been 
told, and fully understand, that there can be no DACA 
without the desperately needed WALL at the 
Southern Border.” Id. The Government then suggests 
that the President’s statements of animus against



25

immigrants of color do not matter because he “has 
repeatedly praised DACA recipients and urged 
Congress to ‘legalize’ their protection.” Id. (citation 
omitted).

The Government’s arguments collapse in on 
themselves. The Government in one breath says that 
the President was not the “relevant decisionmaker,” 
and then in the next admits that he was leveraging 
the rescission of DACA as “part of legislative 
negotiations.” The President has been very clear that 
he would end DACA if Congress did not accede to his 
demand to build a wall on the Southern Border, 
tweeting: “The Democrats have been told, and fully 
understand, that there can be no DACA without the 
desperately needed WALL at the Southern Border . .
. .” Regents, 908 F.3d at 519 n.30. And in the face of 
evidence that the President was using DACA as a 
bargaining chip, it is certainly plausible that the 
President was the relevant decisionmaker.

In fact, the President’s tweets, which are his 
official statements,29 alleviate any doubt. On the 
morning of September 5, 2017, the very same day

29 See, e.g., Def.’s Suppl. Submission and Further Resp. to Pl.’s 
Post-Briefing Notices, James Madison Project v. Dep’t of Justice, 
No. l:17-cv-00144-APM, (D.D.C. Nov. 13, 2017) (DOJ noting that 
the Government is treating the President’s tweets “as official 
statements of the President of the United States”); Elizabeth 
Landers, White House: Trump’s Tweets are ‘Official Statements’, 
CNN (June 6, 2017),
https://www.cnn.com/2017/06/06/politics/trump-tweets-official- 
statements/index.html (recounting the White House Press 
Secretary’s announcing during a press briefing that the 
President’s tweets are “considered official statements by the 
President of the United States”).

https://www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/index.html
https://www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/index.html


26

DHS released its memorandum rescinding DACA,30 
the President tweeted: “Congress, get ready to do your 
job -  DACA!”31 And the next day, after the 
Administration announced that it was rescinding 
DACA, the President tweeted he would “revisit this 
issue” if Congress did not act to legalize DACA within 
six months.32 These tweets reveal that the President 
was a driving force behind the rescission decision.

More generally, a president has immense 
influence over his cabinet. See Humphrey’s Executor 
v. United States, 295 U.S. 602 (1935). And this 
President is widely known to wield particularly great 
influence over his cabinet.33 Thus, President Trump’s

30 DACA Rescission Memo.
31 Mallory Shelbourne, Trump to Congress: ‘Get ready to do your
job” on DACA, The Hill (Sept. 5, 2017),
https://thehill.com/homenews/administration/349173-trump-to-
congress-get-ready-to-do-your-job-on-daca.
32 Sophie Tatum, Trump: I ’ll ‘revisit’ DACA if Congress can’t fix
in 6 months, CNN,
https://www.cnn.com/2017/09/05/politics/donald-trump-revisit- 
daca/index.html (last updated Sept. 6, 2017).
33 For example, in Saget, the court found the President “exerted
significant influence over [the Secretary of Homeland Security’s] 
TPS decision.” 375 F. Supp. 3d at 360. It is reported that the 
President also influenced the Department of Homeland 
Security’s decision to implement a family separation policy. See 
Zack Budryk, Trump’s renewed push for family separations led 
to Nielsen’s ouster: report, The Hill (Apr. 8, 2019),
https://thehill.com/latino/437830-trump-has-pushed-to-resume- 
child-separations-for-months-report. And a more recent 
example, after the National Weather Service contradicted the 
President’s statement about Hurricane Dorian, the Secretary of 
Commerce reportedly threatened to fire the heads of the 
National Oceanic and Atmospheric Administration (NOAA), 
which led NOAA to disavow the earlier statement. See

https://thehill.com/homenews/administration/349173-trump-to-
https://www.cnn.com/2017/09/05/politics/donald-trump-revisit-daca/index.html
https://www.cnn.com/2017/09/05/politics/donald-trump-revisit-daca/index.html
https://thehill.com/latino/437830-trump-has-pushed-to-resume-child-separations-for-months-report
https://thehill.com/latino/437830-trump-has-pushed-to-resume-child-separations-for-months-report


27

stated animus towards Latinos and Mexican 
nationals is highly relevant and supports 
Respondents’ intentional discrimination claims. See 
generally McCreary County v. ACLU of Ky., 545 U.S. 
844, 846 (2005) (a court cannot “turn a blind eye to 
the context in which [a] policy arose”) (internal 
quotation marks and citation omitted).

In any event, the Government’s argument that 
the President was not the “relevant decisionmaker” is 
premature, given Respondents’ allegations that the 
President himself ordered the rescission of DACA. See 
Regents, 298 F. Supp. 3d at 1315; Batalla, 291 F. 
Supp. 3d at 277. At this stage of the proceedings, this 
Court must accept those allegations as true. See 
Erickson u. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen 
ruling on a defendant’s motion to dismiss, a judge 
must accept as true all of the factual allegations 
contained in the complaint.”).

Christopher Flavelle, Lisa Friedman, and Peter Baker, 
Commerce Chief Threatened Firings at NOAA after Trump’s 
Dorian Tweets, Sources Say, NY Times, 
https://www.nytimes.com/2019/09/09/climate/hurricane-dorian- 
trump-tweet.html (last updated Sept. 10, 2019). See also Karen 
Tumulty, President Trump isn’t a fan of dissent—inside or 
outside the government, Wash. Post (Feb. 1, 2017),
https://www.washingtonpost.com/politics/president-trump- 
seeks-to-quash-dissent-inside-the- 
government/2017/02/0 l/788bdefa-e7ed-lle6-b82f- 
687d6e6a3e7c_story.html; Z. Byron Wolf, The kiss of death in 
Trump’s cabinet is disagreeing with the boss, CNN, 
https://www.cnn.com/2018/04/03/politics/trump-cabinet-kiss-of- 
death/index.html (last updated Apr. 3, 2018); Stephen Collinson, 
The law or the President: The Trump appointees’ dilemma, CNN 
(Apr. 9, 2019), https://www.cnn.com/2019/04/09/politics/donald- 
trump-kirstjen-nielsen-immigration/index.html.

https://www.nytimes.com/2019/09/09/climate/hurricane-dorian-trump-tweet.html
https://www.nytimes.com/2019/09/09/climate/hurricane-dorian-trump-tweet.html
https://www.washingtonpost.com/politics/president-trump-seeks-to-quash-dissent-inside-the-government/2017/02/0
https://www.washingtonpost.com/politics/president-trump-seeks-to-quash-dissent-inside-the-government/2017/02/0
https://www.washingtonpost.com/politics/president-trump-seeks-to-quash-dissent-inside-the-government/2017/02/0
https://www.cnn.com/2018/04/03/politics/trump-cabinet-kiss-of-death/index.html
https://www.cnn.com/2018/04/03/politics/trump-cabinet-kiss-of-death/index.html
https://www.cnn.com/2019/04/09/politics/donald-trump-kirstjen-nielsen-immigration/index.html
https://www.cnn.com/2019/04/09/politics/donald-trump-kirstjen-nielsen-immigration/index.html


28

The Government’s assertion that the 
President’s remarks “praising” DACA recipients 
somehow neuters his numerous statements evincing 
animus against immigrants of color must be rejected. 
The President only made those “praising” statements 
while asserting the United States needs to build a 
wall across the Southern border to keep people from 
Central America out of the country. And racist 
remarks cannot be cured by feel-good bromides. The 
President cannot meaningfully say he “loves those 
kids,” referring to DACA recipients (when most of 
them are adults), and then label people from the same 
countries the vast majority of DACA recipients come 
from as animals, drug dealers, rapists, and 
murderers. Simply, Respondents’ allegations of the 
President’s animus support the plausibility of their 
intentional discrimination claims.

Finally, the Government claims there was 
“nothing remotely unusual’ about the history of the 
rescission” because shortly after DHS reaffirmed 
DACA, “the Texas34 plaintiffs indicated their intent to 
challenge [DACA], and the Attorney General 
informed the Acting Secretary that he had concluded 
that the policy was unlawful . . .” Pet’r’s Br. at 56.35 
The Government claims that these two “facts provide

34 Texas v. United States, 96 F. Supp. 3d 591 (S.I). Tex.), aff’d, 
809 F.3d 134 (5th Cir. 2015), aff’d, 136 S. Ct. 2271 (2016).
35 Attorney General Sessions also said in his remarks
announcing that the Administration’s stance that DACA was 
illegal that DACA “denied jobs to hundreds of thousands of 
Americans by allowing those same jobs to go to illegal aliens.” 
U.S. Dep't of Justice, Office of Pub. Affairs, Attorney General 
Sessions Delivers Remarks on DACA (Sept. 5, 2017),
https://www.justice.gov/opa/speech/attorney-general-sessions- 
deliver s-remarks-daca.

https://www.justice.gov/opa/speech/attorney-general-sessions-deliver
https://www.justice.gov/opa/speech/attorney-general-sessions-deliver


29

ample explanation for the policy change and its 
timing.” Id. at 57.

However, the fact that the Government can 
give reasons for its decision to rescind DACA does not 
mean that the process leading up to that decision was 
not unusual. As the district court reasoned in Regents, 
the speed at which the Government rescinded DACA 
makes these purported justifications appear 
“contrived” : the “strange about-face, done at lightning 
speed, suggests that the normal care and 
considerations within the agency was bypassed.” 
Regents, 298 F. Supp. 3d at 1315. And the speed of 
this decision is extra curious given just how 
momentous it was. Regents, 908 F.3d at 493. The 
Government does not dispute Respondents’ 
allegations that the decision to rescind DACA was 
abrupt, and the Government’s justifications for that 
abruptness do not undercut the inference of 
discrimination at the pleadings stage.

The Census case recently decided by this Court 
exemplifies why Respondents’ Equal Protection 
Clause claims cannot be dismissed at the pleadings 
stage. In that case, the Secretary of Commerce 
asserted that the Government was seeking to add a 
citizenship question to the census to better enforce 
the Voting Rights Act (VRA). See Dep’t of Commerce 
v. New York, 139 S. Ct. 2551, 2575 (2019). However, 
the evidence told a “story that did not match the 
explanation the Secretary gave for his decision.” Id. 
The evidence revealed that the VRA explanation was 
“contrived” and “pretextual,” because “the Secretary 
began taking steps to reinstate a citizenship question 
about a week into his tenure” with “no hint that he



30

was considering VRA enforcement in connection with 
that project.” Id.

Respondents have plausibly alleged the 
Government’s purported rationales for rescinding 
DACA—its illegality and potential litigation— are 
similarly “contrived” and “pretextual.” Id. This 
likelihood is increased when considering the 
disparate impact the rescission had on Latinos and 
individuals of Mexican ancestry, which are groups the 
President has persistently evinced animus towards, 
and the unusual history behind DACA’s rescission. 
Although the validity of Respondents’ allegations 
must ultimately be tested at trial after they have an 
opportunity for discovery, they have easily met their 
burden at the pleading stage. Indeed, as Judge Owens 
recognized, their allegations that the Government’s 
decision to rescind DACA was motivated by racial 
discrimination are “promising,” and suggest an 
alternative basis to uphold the district courts’ 
preliminary injunctions.



31

CONCLUSION

This Court should affirm the lower courts’ 
decisions preliminarily enjoining the rescission of 
DACA. If the Court reaches Respondents’ 
constitutional claims, it should hold that those claims

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
Natasha Merle*
RAYMOND AUDAIN 
Cara McClellan 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., 5th Floor 
New York, NY 10006 
(212) 965-2200 
nmerle@naacpldf.org

Respectfully submitted,

Daniel Harawa 
Of Counsel

NAACP Legal Defense & 
Educational Fund, Inc. 
700 14th St, NW Suite 600 
Washington, DC 20005

Counsel for Amicus Curiae 
NAACP Legal Defense & 
Educational Fund, Inc

October 4, 2019

* Counsel of Record

mailto:nmerle@naacpldf.org