                    FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


REGENTS OF THE UNIVERSITY              No. 18-15068
OF CALIFORNIA; JANET
NAPOLITANO, in her official               D.C. No.
capacity as President of the        3:17-cv-05211-WHA
University of California,
            Plaintiffs-Appellees,

               v.

U.S. DEPARTMENT OF
HOMELAND SECURITY;
KIRSTJEN NIELSEN, in her
official capacity as Acting
Secretary of the Department of
Homeland Security,
         Defendants-Appellants.
2       REGENTS OF THE UNIV. OF CAL. V. USDHS


STATE OF CALIFORNIA; STATE              No. 18-15069
OF MAINE; STATE OF
MINNESOTA; STATE OF                        D.C. No.
MARYLAND,                            3:17-cv-05235-WHA
            Plaintiffs-Appellees,

                v.

U.S. DEPARTMENT OF
HOMELAND SECURITY;
KIRSTJEN NIELSEN, in her
official capacity as Acting
Secretary of the Department of
Homeland Security; UNITED
STATES OF AMERICA,
         Defendants-Appellants.



CITY OF SAN JOSE,                       No. 18-15070
            Plaintiff-Appellee,
                                           D.C. No.
                v.                   3:17-cv-05329-WHA

DONALD J. TRUMP, President of
the United States, in his official
capacity; KIRSTJEN NIELSEN, in
her official capacity as Acting
Secretary of the Department of
Homeland Security; UNITED
STATES OF AMERICA,
         Defendants-Appellants.
       REGENTS OF THE UNIV. OF CAL. V. USDHS            3


DULCE GARCIA; MIRIAM                   No. 18-15071
GONZALEZ AVILA; SAUL
JIMENEZ SUAREZ; VIRIDIANA                 D.C. No.
CHABOLLA MENDOZA; JIRAYUT           3:17-cv-05380-WHA
LATTHIVONGSKORN; NORMA
RAMIREZ,
          Plaintiffs-Appellees,

               v.

UNITED STATES OF AMERICA;
DONALD J. TRUMP, in his
official capacity as President of
the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN NIELSEN,
in her official capacity as
Acting Secretary of the
Department of Homeland
Security,
         Defendants-Appellants.
4      REGENTS OF THE UNIV. OF CAL. V. USDHS


COUNTY OF SANTA CLARA;                 No. 18-15072
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL                 D.C. No.
521,                                3:17-cv-05813-WHA
         Plaintiffs-Appellees,

               v.

DONALD J. TRUMP, in his
official capacity as President of
the United States; JEFFERSON
B. SESSIONS III, Attorney
General; KIRSTJEN NIELSEN, in
her official capacity as Acting
Secretary of the Department of
Homeland Security; U.S.
DEPARTMENT OF HOMELAND
SECURITY,
         Defendants-Appellants.
       REGENTS OF THE UNIV. OF CAL. V. USDHS            5


REGENTS OF THE UNIVERSITY              No. 18-15128
OF CALIFORNIA; JANET
NAPOLITANO, in her official              D.C. Nos.
capacity as President of the        3:17-cv-05211-WHA
University of California;           3:17-cv-05235-WHA
STATE OF CALIFORNIA; STATE          3:17-cv-05329-WHA
OF MAINE; STATE OF                  3:17-cv-05380-WHA
MINNESOTA; STATE OF                 3:17-cv-05813-WHA
MARYLAND; CITY OF SAN JOSE;
DULCE GARCIA; MIRIAM
GONZALEZ AVILA; SAUL
JIMENEZ SUAREZ; VIRIDIANA
CHABOLLA MENDOZA; JIRAYUT
LATTHIVONGSKORN; NORMA
RAMIREZ; COUNTY OF SANTA
CLARA; SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL
521,
            Plaintiffs-Appellees,

               v.

UNITED STATES OF AMERICA;
DONALD J. TRUMP, in his
official capacity as President of
the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN NIELSEN,
in her official capacity as
Acting Secretary of the
Department of Homeland
Security,
         Defendants-Appellants.
6      REGENTS OF THE UNIV. OF CAL. V. USDHS


REGENTS OF THE UNIVERSITY              No. 18-15133
OF CALIFORNIA; JANET
NAPOLITANO, in her official              D.C. Nos.
capacity as President of the        3:17-cv-05211-WHA
University of California;           3:17-cv-05235-WHA
STATE OF CALIFORNIA; STATE          3:17-cv-05329-WHA
OF MAINE; STATE OF                  3:17-cv-05380-WHA
MINNESOTA; STATE OF                 3:17-cv-05813-WHA
MARYLAND; CITY OF SAN JOSE;
DULCE GARCIA; MIRIAM
GONZALEZ AVILA; SAUL
JIMENEZ SUAREZ; VIRIDIANA
CHABOLLA MENDOZA; JIRAYUT
LATTHIVONGSKORN; NORMA
RAMIREZ,
          Plaintiffs-Appellants,

               v.

UNITED STATES OF AMERICA;
DONALD J. TRUMP, in his
official capacity as President of
the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN NIELSEN,
in her official capacity as
Acting Secretary of the
Department of Homeland
Security,
          Defendants-Appellees.
       REGENTS OF THE UNIV. OF CAL. V. USDHS            7


DULCE GARCIA; MIRIAM                   No. 18-15134
GONZALEZ AVILA; SAUL
JIMENEZ SUAREZ; VIRIDIANA                D.C. Nos.
CHABOLLA MENDOZA; NORMA             3:17-cv-05211-WHA
RAMIREZ; JIRAYUT                    3:17-cv-05235-WHA
LATTHIVONGSKORN; COUNTY             3:17-cv-05329-WHA
OF SANTA CLARA; SERVICE             3:17-cv-05380-WHA
EMPLOYEES INTERNATIONAL             3:17-cv-05813-WHA
UNION LOCAL 521,
         Plaintiffs-Appellants,
                                          OPINION
               v.

UNITED STATES OF AMERICA;
DONALD J. TRUMP, in his
official capacity as President of
the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN NIELSEN,
in her official capacity as
Acting Secretary of the
Department of Homeland
Security,
          Defendants-Appellees.



      Appeal from the United States District Court
        for the Northern District of California
       William Alsup, District Judge, Presiding

          Argued and Submitted May 15, 2018
                 Pasadena, California

                 Filed November 8, 2018
8         REGENTS OF THE UNIV. OF CAL. V. USDHS

    Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,
             and John B. Owens, Circuit Judges.

                  Opinion by Judge Wardlaw;
                 Concurrence by Judge Owens


                          SUMMARY *


                           Immigration

    In an action challenging the Department of Homeland
Security’s rescission of Deferred Action for Childhood
Arrivals (DACA), the panel affirmed the district court’s
grant of preliminary injunctive relief, and affirmed in part
the district court’s partial grant and partial denial of the
government’s motion to dismiss for failure to state a claim.

    Begun in 2012, DACA allows those noncitizens who
unwittingly entered the United States as children, who have
clean criminal records, and who meet various educational or
military service requirements to apply for two-year
renewable periods of deferred action—a revocable decision
by the government not to deport an otherwise removable
person from the country. In 2014, Secretary of Homeland
Security Jeh Johnson issued a memorandum that announced
the related Deferred Action for Parents of Americans and
Lawful Permanent Residents program (DAPA), which
allowed deferred action for certain noncitizen parents of
American citizens and lawful permanent residents, and
expanded DACA. All of the policies outlined in the 2014

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
         REGENTS OF THE UNIV. OF CAL. V. USDHS               9

Johnson memorandum were enjoined nationwide in a district
court order upheld by the Fifth Circuit and affirmed by an
equally divided Supreme Court. After a new presidential
administration took office, Acting Secretary of Homeland
Security Elaine Duke issued a memorandum in September
2017 rescinding DACA.

    Suits were filed in the Northern District of California by
the Regents of the University of California, a group of states
led by California, the City of San Jose, the County of Santa
Clara and Service Employees International Union Local 521,
and a group of individual DACA recipients led by Dulce
Garcia. The cases were consolidated, and the district court
ordered the government to complete the administrative
record. Seeking to avoid providing additional documents,
the government filed a petition for mandamus, which this
court denied. The government petitioned the Supreme Court
for the same mandamus relief; the Court did not reach the
merits of the administrative record dispute, but instructed the
district court to rule on the government’s threshold
arguments challenging reviewability of its rescission
decision. The district court entered a preliminary injunction
requiring DHS to adjudicate renewal applications for
existing DACA recipients, and the court partially granted
and partially denied the government’s motion to dismiss.

    The panel held that neither the Administrative Procedure
Act nor the Immigration and Nationality Act (INA) barred
judicial review of the decision to rescind DACA. With
respect to the APA, the panel reviewed the cases of Heckler
v. Chaney, 470 U.S. 821 (1985), Montana Air Chapter No.
29 v. Federal Labor Relations Authority, 898 F.2d 753 (9th
Cir. 1990), and City of Arlington v. FCC, 569 U.S. 290
(2013). The panel concluded that, where the agency’s
decision is based not on an exercise of discretion, but instead
10      REGENTS OF THE UNIV. OF CAL. V. USDHS

on a belief that any alternative choice was foreclosed by law
because the agency lacked authority, the APA’s “committed
to agency discretion” bar to reviewability, 5 U.S.C.
§ 701(a)(2), does not apply. The panel also concluded that
the Acting Secretary based the rescission of DACA solely
on a belief that DACA was beyond the authority of DHS.
Accordingly, the panel determined that the rescission was
within the realm of agency actions reviewable under the
APA.

    With respect to the INA, the panel rejected the
government’s contention that review was barred by 8 U.S.C.
§ 1252(g), which precludes judicial review of “any cause or
claim by or on behalf of any alien arising from the decision
or action of the [Secretary of Homeland Security] to
commence proceedings, adjudicate cases, or execute
removal orders.” The panel explained that, under Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999),
the rescission does not fall within the three discrete actions
mentioned in 8 U.S.C. § 1252(g).

     Having concluded that neither the APA nor the INA
precludes judicial review, the panel turned to the merits of
the preliminary injunction and considered whether the
agency was correct in concluding that DACA was unlawful.
The Attorney General’s primary bases for concluding that
DACA was illegal were that the program was “effectuated .
. . without proper statutory authority” and that it amounted
to “an unconstitutional exercise of authority.” More
specifically, the Attorney General asserted that “the DACA
policy has the same legal and constitutional defects that the
courts recognized as to DAPA” in the Fifth Circuit litigation.
The panel considered the DAPA litigation, comparing
aspects of DAPA and DACA, and concluded that that
DACA was a permissible exercise of executive discretion,
        REGENTS OF THE UNIV. OF CAL. V. USDHS              11

notwithstanding the Fifth Circuit’s conclusion that the
related DAPA program exceeded DHS’s statutory authority.
Thus, the panel concluded that, because the Acting Secretary
was incorrect in her belief that DACA was illegal and had to
be rescinded, plaintiffs are likely to succeed in
demonstrating that the rescission must be set aside under the
APA as arbitrary and capricious.

    The panel next concluded that the district court did not
abuse its discretion in issuing a nationwide injunction,
noting that such relief is commonplace in APA cases,
promotes uniformity in immigration enforcement, and is
necessary to provide the plaintiffs here with complete
redress.

    Finally, addressing the district court’s order granting in
part and denying in part the government’s motion to dismiss,
the court concluded that the district court properly dismissed
plaintiffs’ APA notice-and-comment claim, and their claim
that the DACA rescission violates their substantive due
process rights. The panel further concluded that the district
court also properly denied the government’s motion to
dismiss plaintiffs’ APA arbitrary-and-capricious claim, their
claim that the new information-sharing policy violates their
due process rights, and their claim that the DACA rescission
violates their right to equal protection.

    Concurring in the judgment, Judge Owens wrote that, as
he believed the Plaintiffs’ Equal Protection claim has some
likelihood of success on the merits, he concurred in the
judgment affirming the preliminary injunction. However,
Judge Owens disagreed with the majority’s conclusion that
otherwise unreviewable agency action is reviewable when
the agency justifies its action by reference to its
understanding of its jurisdiction. Therefore, Judge Owens
would hold that § 701(a)(2) precludes the court from
12       REGENTS OF THE UNIV. OF CAL. V. USDHS

subjecting DACA’s rescission to arbitrary-and-capricious
review. Judge Owens would also affirm the preliminary
injunction and remand for consideration whether Plaintiffs
have demonstrated a likelihood of success on the merits of
their Equal Protection claim.

    As for the government’s appeal from the motions to
dismiss, Judge Owens dissented from the majority’s holding
to affirm the district court’s denial of the motion to dismiss
Plaintiffs’ APA arbitrary-and-capricious claim. However,
he concurred in the majority’s holding to affirm the district
court’s dismissal of Plaintiffs’ APA notice-and-comment
claim. He also concurred in the judgment to affirm the
district court’s ruling on Plaintiffs’ Due Process claims. He
also agreed with the majority’s decision to affirm the district
court’s denial of the motion to dismiss the Equal Protection
claim and hold that the Equal Protection claim offers an
alternative ground to affirm the preliminary injunction.


                         COUNSEL

Hashim M. Mooppan (argued), Deputy Assistant Attorney
General; Thomas Pulham, Abby C. Wright, and Mark B.
Stern, Appellate Staff; Alex G. Tse, Acting United States
Attorney; Chad A. Readler, Acting Assistant Attorney
General; United States Department of Justice, Washington,
D.C.; for Defendants-Appellants.

Michael J. Mongan (argued), Deputy Solicitor General;
Samuel P. Siegel, Associate Deputy Solicitor General;
James F. Zahradka II, Deputy Attorney General; Michael L.
Newman, Supervising Deputy Attorney General; Edward C.
DuMont, Solicitor General; Xavier Becerra, Attorney
        REGENTS OF THE UNIV. OF CAL. V. USDHS           13

General; Office of the Attorney General, San Francisco,
California; for Plaintiff-Appellee State of California.

Susan P. Herman, Deputy Attorney General; Janet T. Mills,
Attorney General; Office of the Attorney General, Augusta,
Maine; for Plaintiff-Appellee State of Maine.

Jacob Campion, Assistant Attorney General; Lori Swanson,
Attorney General; Office of the Attorney General, St. Paul,
Minnesota; for Plaintiff-Appellee State of Minnesota.

Leah J. Tullin, Assistant Attorney General; Steven M.
Sullivan, Solicitor General; Brian E. Frosh, Attorney
General; Attorney General’s Office, Baltimore, Maryland;
for Plaintiff-Appellee State of Maryland.

Jeffrey Michael Davidson (argued), Breanna K. Jones,
David S. Watnick, Erika Douglas, and Mónica Ramírez
Almadani, Covington & Burling LLP, San Francisco,
California; Ivano M. Ventresca, Megan A. Crowley,
Alexander A. Berengaut, Mark H. Lynch, and Robert A.
Long, Covington & Burling LLP, Washington, D.C.; for
Plaintiff-Appellee The Regents of the University of
California, et al.

Brian Danitz, Tamarah Prevost, and Justin T. Berger,
Cotchett Pitre & McCarthy LLP, Burlingame, California, for
Plaintiff-Appellee City of San José.

Mark D. Rosenbaum (argued), Malhar Shah, and Judy
London, Public Counsel, Los Angeles, California; Haley S.
Morrisson, Matthew S. Rozen, and Nicole A. Saharsky,
Gibson Dunn & Crutcher LLP, Washington, D.C.; Kelsey J.
Helland, Jonathan N. Soleimani, Kirsten Galler, Ethan D.
Dettmer, and Theodore J. Boutrous Jr., Gibson Dunn &
14      REGENTS OF THE UNIV. OF CAL. V. USDHS

Crutcher LLP, Los Angeles, California; Luis Cortes
Romera, Barrera Legal Group PLLC, Kent, Washington;
Erwin Chemerinsky, Berkeley, California; Laurence H.
Tribe, Cambridge, Massachusetts; Leah M. Litman, Irvine,
California; for Plaintiffs-Appellees Dulce Garcia, Miriam
Gonzalez Avila, Saul Jimenez Suarez, Virdiana Chabolla
Mendoza, Norma Ramirez, and Jirayut Latthivongskorn.

Andrew Kushner, Eric P. Brown, and Stacey M. Leyton,
Altshuler Berzon LLP, San Francisco, California, for
Plaintiff-Appellee County of Santa Clara and Service
Employees International Union Local 521.

Marcelo Quiñones, Laura S. Trice, Greta S. Hansen, and
James R. Williams, Office of the County Counsel, County of
Santa Clara, San Jose, California, for Plaintiff-Appellee
County of Santa Clara.

Jessica Levin, Melissa Lee, Lorraine K. Bannai, and Robert
S. Chang, Ronald A. Peterson Law Clinic, Seattle University
School of Law, Seattle, Washington, for Amici Curiae 42
Historians and the Fred T. Korematsu Center for Law and
Equality.

Leo Gertner, Deborah L. Smith, and Nicole G. Berner,
Service Employees International Union, Washington, D.C.;
Deepak Gupta, Gupta Wessler PLLC, Washington, D.C.;
David J. Strom, American Federation of Teachers,
Washington, D.C.; Judith Rivlin, American Federation of
State, County, and Municipal Employees, Washington,
D.C.; Patricia M. Shea, Communications Workers of
America, Washington, D.C.; Bradley Raymond,
International Brotherhood of Teamsters, Washington, D.C.;
Joseph E. Kolick Jr., International Union of Painters and
Allied Trades, Hanover, Maryland; Mario Martínez,
        REGENTS OF THE UNIV. OF CAL. V. USDHS           15

Martínez Aguilasocho & Lynch APLC, Bakersfield,
California; for Amici Curiae Service Employees
International Union; American Federation of Teachers;
American Federation of State, County and Municipal
Employees; Communications Workers of America;
International Brotherhood of Teamsters; International Union
of Painters and Allied Trades; and United Farm Workers of
America.

Geoffrey S. Brounell and Peter Karanjia, Davis Wright
Tremaine LLP, Washington, D.C., for Amicus Curiae
United We Dream.

Sean Goldhammer, Lubna A, Alam, Jason Walta, Emma
Leheny, and Alice O’Brien, National Education Association,
Washington, D.C.; Andra M. Donovan, San Diego Unified
School District, San Diego, California; Abhas Hajela,
Capitol Advisors Group LLC, Sacramento, California; Eric
E. Stevens, Girard Edwards Stevens & Tucker LLP,
Sacramento, California; Kathryn M. Sheffield, California
Faculty Association, Sacramento, California; Glenn
Rothner, Rothner Segall & Greenstone, Pasadena,
California; D. Michael Ambrose and Elaine M. Yama-
Garcia, California School Boards Association Education
Legal Alliance, Sacramento, California; Jean Shin and Laura
P. Juran, California Teachers Association, Burlingame,
California; Vibiana M. Andrade, Los Angeles County Office
of Education, Downey, California; Devora Navera Reed and
David Holmquist, Los Angeles Unified School District, Los
Angeles, California; Sonja H. Trainor and Francisco
Negrón, National School Boards Association, Alexandria,
Virginia; Michael L. Smith, Oakland Unified School
District, Oakland, California; Raoul Bozio, Sacramento City
Unified School District, Sacramento, California; for Amici
Curiae Public Education Groups.
16      REGENTS OF THE UNIV. OF CAL. V. USDHS

Caryn C. Lederer, Chirag G. Badlani, and Matthew J. Piers,
Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois;
Daniel B. Rice and Joshua A. Geltzer, Institute for
Constitutional Advocacy and Protection, Georgetown
University Law Center, Washington, D.C.; for Amici Curiae
Current and Former Prosecutors and Law Enforcement
Leaders.

Zachary Kolodin, Michael N. Fresco, Adeel A. Mangi, and
Steven A. Zalesin, Patterson Belknap Webb & Tyler LLP,
New York, New York; Juvaria Khan, Sirine Shebaya, and
Jonathan Smith, Muslim Advocates, Washington, D.C.; for
Amici Curiae 119 Religious Organizations.

Jennifer J. Yun, Ishan Bhabha, Lindsay C. Harrison, and
Thomas J. Perrelli, Jenner & Block LLP, Washington, D.C.,
for Amici Curiae Institutions of Higher Education.

Jennifer B. Sokoler and Anton Metlitsky, O’Melveny &
Myers LLP, New York, New York, for Amicus Curiae
Eighteen Universities.

Lauren R. Goldman and Karen W. Lin, Mayer Brown LLP,
New York, New York; Andrew J. Pincus, Mayer Brown
LLP, Washington, D.C.; Ari Holzblatt, Patrick J. Carome,
and Seth Waxman, Wilmer Cutler Pickering Hale and Dorr
LLP, Washington, D.C.; for Amici Curiae 102 Companies
and Associations.

John-Paul S. Deol and Daniel J. McCoy, Fenwick & West
LLP, Mountain View, California; Mark S. Ross, James L.
McGinnis, and Neil A.F. Popović, Sheppard Mullin Richter
& Hampton LLP, San Francisco, California; for Amicus
Curiae The Bar Association of San Francisco.
        REGENTS OF THE UNIV. OF CAL. V. USDHS            17

Juan P. Valdivieso, Boies Schiller Flexner LLP, Oakland,
California; Albert Giang, Boies Schiller Flexner LLP, Los
Angeles, California; J. Wells Harrell and Joshua Riley,
Boies Schiller Flexner LLP, Washington, D.C.; for Amici
Curiae Former Federal Immigration and Homeland Security
Officials.

Kaitland M. Kennelly and William J. Schwartz, Cooley LLP,
New York, New York, for Amici Curiae Partnership for
Educational Justice, DelawareCAN: The Delaware
Campaign for Achievement Now, HawaiiKidsCAN,
NewMexicoKidsCAN, and Virginia Excels.

Matthew Scherb, Michael Dundas, Valerie L. Flores, Leela
A. Kapur, James P. Clark, and Michael N. Feuer, City
Attorney, Office of the City Attorney, Los Angeles,
California; Donna R. Ziegler, Alameda County Counsel,
Oakland, California; Anne L. Morgan, City Attorney,
Austin, Texas; Eugene O’Flaherty, City Corporation
Counsel, Boston, Massachusetts; Cheryl Watson Fisher,
City Solicitor, Chelsea, Massachusetts; Kimberly M. Foxx,
States Attorney for Cook County, Chicago, Illinois; Jeremy
Berry, City Attorney, Atlanta, Georgia; Farimah F. Brown,
City Attorney, Berkeley, California; Nancy E. Glowa, City
Solicitor, Cambridge, Massachusetts; Edward N. Siskel,
City Corporation Counsel, Chicago, Illinois; Larry E. Casto,
City Attorney, Dallas, Texas; Kristin M. Bronson, City
Attorney of the City and County of Denver, Denver,
Colorado; Gregory L. Thomas, City Attorney, Gary,
Indiana; Ronald C. Lewis, City Attorney, Houston, Texas;
Eleanor M. Dilkes, City Attorney, Iowa City, Iowa; Jennifer
Vega-Brown, City Attorney, Las Cruces, New Mexico; Karl
A. Racine, Attorney General, District of Colombia,
Washington, D.C.; Donna Y. L. Leong, Corporation
Counsel, Honolulu, Hawaii; Aaron O. Lavine, City
18      REGENTS OF THE UNIV. OF CAL. V. USDHS

Attorney, Ithaca, New York; Daniel T. Satterberg, King
County Prosecuting Attorney, Seattle, Washington; Charles
Parkin, City Attorney, Long Beach, California; Margaret L.
Carter, O’Melveny & Myers LLP, Los Angeles, California;
Susan Segal, City Attorney, Minneapolis, Minnesota; John
Rose Jr., Corporation Counsel, New Haven, Connecticut;
Barbara J. Parker, City Attorney, Oakland, California; Tracy
P. Reeve, City Attorney, Portland, Oregon; Michael P. May,
City Attorney, Madison, Wisconsin; Charles J. McKee,
Monterey County Counsel, Salinas, California; Zachary W.
Carter, City Corporation Counsel, New York, New York;
Marcel S. Pratt, Acting City Solicitor, Philadelphia,
Pennsylvania; Jeffrey Dana, City Solicitor, Providence,
Rhode Island; Timothy R. Curtin, City Corporation Counsel,
Rochester, New York; Dennis J. Herrera, City Attorney for
the City and County of San Francisco, San Francisco,
California; Lane Dilg, City Attorney, Santa Monica,
California; Francis X. Wright Jr., City Solicitor, Somerville,
Massachusetts; Matthew D. Ruyak, Interim City Attorney,
Sacramento, California; Kelley A. Brennan, City Attorney,
Santa Fe, New Mexico; Peter S. Holmes, City Attorney;
Seattle, Washington; Mike Rankin, City Attorney, Tucson,
Arizona; Michael Jenkins, West Hollywood City Attorney,
Jenkins & Hogan LLP, Manhattan Beach, California; John
Daniel Reaves, General Counsel, The U.S. Conference of
Mayors, Washington, D.C.; for Amici Curiae 40 Cities and
Counties, The National League of Cities, and The United
States Conference of Mayors.

Jennifer Chang Newell and Katrina L. Eiland, ACLU
Foundation Immigrants’ Rights Project, San Francisco,
California; David Hausman, Michael K.T. Tan, and Lee
Gelernt, ACLU Foundation Immigrants’ Rights Project,
New York, New York; Julia Harumi Mass, ACLU
Foundation of Northern California, San Francisco,
        REGENTS OF THE UNIV. OF CAL. V. USDHS            19

California; Ahilan T. Arulanantham, ACLU Foundation of
Southern California, Los Angeles, California; David Loy,
ACLU Foundation of San Diego & Imperial Counties, San
Diego, California; for Amici Curiae American Civil
Liberties Union Foundation, ACLU Foundation of Northern
California, ACLU Foundation of Southern California, and
ACLU Foundation of San Diego & Imperial Counties.

Claire M. Blakey, Johanna S. Dennehy, and Harry Lee,
Steptoe & Johnson LLP, Washington, D.C.; Christopher W.
Smith, Steptoe & Johnson, Los Angeles, California; for
Amici Curiae Immigration Law Scholars.

Avi Zevin, Jack Lienke, and Richard L. Revesz, Institute for
Policy Integrity, New York, New York, for Amicus Curiae
Institute for Policy Integrity at New York University School
of Law.

Anna-Rose Mathieson and Ben Feuer, California Appellate
Law Group LLP, San Francisco, California; Daniel Hemel,
Chicago, Illinois; Seth Davis, Irvine, California; for Amici
Curiae Twenty-Four Law Professors.

Philicia Hill, Dorian Spence, Dariely Rodriguez, and Jon
Greenbaum, The Lawyers’ Committee for Civil Rights
Under Law, Washington, D.C.; Sameer P. Sheikh, Martin L.
Saad, John F. Cooney, and William D. Coston, Venable
LLP, Washington, D.C.; for Amici Curiae The Lawyers’
Committee for Civil Rights Under Law, Anti-Defamation
League, and Social Justice Organizations.

Joan R. Li, Kara C. Wilson, Monique R. Sherman, and
Maureen P. Alger, Cooley LLP, Palo Alto, California, for
Amici Curiae Legal Services Organizations.
20      REGENTS OF THE UNIV. OF CAL. V. USDHS

Mary Kelley Persyn, Persyn Law & Policy, San Francisco,
California, for Amici Curiae American Professional Society
on the Abuse of Children and California Professional
Society on the Abuse of Children.

Christopher J. Hajec, Immigration Reform Law Institute,
Washington, D.C., for Amicus Curiae The Immigration
Reform Law Institute.


                        OPINION

WARDLAW, Circuit Judge:

    It is no hyperbole to say that Dulce Garcia embodies the
American dream. Born into poverty, Garcia and her parents
shared a San Diego house with other families to save money
on rent; she was even homeless for a time as a child. But she
studied hard and excelled academically in high school.
When her family could not afford to send her to the top
university where she had been accepted, Garcia enrolled in
a local community college and ultimately put herself through
a four-year university, where she again excelled while
working full-time as a legal assistant. She then was awarded
a scholarship that, together with her mother’s life savings,
enabled her to fulfill her longstanding dream of attending
and graduating from law school. Today, Garcia maintains a
thriving legal practice in San Diego, where she represents
members of underserved communities in civil, criminal, and
immigration proceedings.

    On the surface, Dulce Garcia appears no different from
any other productive—indeed, inspiring—young American.
But one thing sets her apart. Garcia’s parents brought her to
this country in violation of United States immigration laws
        REGENTS OF THE UNIV. OF CAL. V. USDHS             21

when she was four years old. Though the United States of
America is the only home she has ever known, Dulce Garcia
is an undocumented immigrant.

    Recognizing the cruelty and wastefulness of deporting
productive young people to countries with which they have
no ties, the Secretary of Homeland Security announced a
policy in 2012 that would provide some relief to individuals
like Garcia, while allowing our communities to continue to
benefit from their contributions. Known as Deferred Action
for Childhood Arrivals, or DACA, the program allows those
noncitizens who unwittingly entered the United States as
children, who have clean criminal records, and who meet
various educational or military service requirements to apply
for two-year renewable periods of deferred action—a
revocable decision by the government not to deport an
otherwise removable person from the country. DACA also
allows recipients to apply for authorization to work in this
country legally, paying taxes and operating in the above-
ground economy. Garcia, along with hundreds of thousands
of other young people, trusting the government to honor its
promises, leapt at the opportunity.

   But after a change in presidential administrations, in
2017 the government moved to end the DACA program.
Why? According to the Acting Secretary of Homeland
Security, upon the legal advice of the Attorney General,
DACA was illegal from its inception, and therefore could no
longer continue in effect. And after Dulce Garcia—along
with other DACA recipients and affected states,
municipalities, and organizations—challenged this
conclusion in the federal courts, the government adopted the
position that its fundamentally legal determination that
DACA is unlawful is unreviewable by the judicial branch.
22        REGENTS OF THE UNIV. OF CAL. V. USDHS

    With due respect for the Executive Branch, we disagree.
The government may not simultaneously both assert that its
actions are legally compelled, based on its interpretation of
the law, and avoid review of that assertion by the judicial
branch, whose “province and duty” it is “to say what the law
is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
The government’s decision to rescind DACA is subject to
judicial review. And, upon review, we conclude that
plaintiffs are likely to succeed on their claim that the
rescission of DACA—at least as justified on this record—is
arbitrary, capricious, or otherwise not in accordance with
law. We therefore affirm the district court’s grant of
preliminary injunctive relief. 1

                                    I.

A. History of Deferred Action

    The central benefit available under the DACA program
is deferred action. Because much of this dispute revolves
around the legitimacy of that practice, we begin by
reviewing the Executive Branch’s historical use of deferred
action.

    The basic concept is a simple one: deferred action is a
decision by Executive Branch officials not to pursue
deportation proceedings against an individual or class of
individuals otherwise eligible for removal from this country.
See 6 Charles Gordon et al., Immigration Law & Procedure
§ 72.03[2][h] (2018) (“To ameliorate a harsh and unjust
outcome, the immigration agency may decline to institute
proceedings, may terminate proceedings, or may decline to

    1
      We also affirm in part the district court’s partial grant and partial
denial of the government’s motion to dismiss for failure to state a claim.
         REGENTS OF THE UNIV. OF CAL. V. USDHS              23

execute a final order of deportation. This commendable
exercise in administrative discretion . . . is now designated
as deferred action.”); Barahona-Gomez v. Reno, 236 F.3d
1115, 1119 n.3 (9th Cir. 2001) (“Deferred action refers to an
exercise of administrative discretion by the [immigration
agency] under which [it] takes no action to proceed against
an apparently deportable alien based on a prescribed set of
factors generally related to humanitarian grounds.” (internal
quotation marks omitted)); Hiroshi Motomura, Immigration
Outside the Law 29 (2014) (noting that “deferred action is
usually granted only for limited periods of time and does not
provide a path to lawful permanent resident status or
citizenship”).

    Unlike most other forms of relief from deportation,
deferred action is not expressly grounded in statute. It arises
instead from the Executive’s inherent authority to allocate
resources and prioritize cases. Cf. 6 U.S.C. § 202(5)
(charging the Secretary of Homeland Security with
“[e]stablishing national immigration enforcement policies
and priorities”). As such, recipients of deferred action
“enjoy no formal immigration status.” Ariz. Dream Act
Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir. 2017) (Brewer
II). But despite its non-statutory origins, Congress has
historically recognized the existence of deferred action in
amendments to the Immigration and Nationality Act (INA),
as well as other statutory enactments. See 8 U.S.C.
§ 1227(d)(2) (“The denial of a request for an administrative
stay of removal under this subsection shall not preclude the
alien from applying for . . . deferred action[.]”); REAL ID
Act of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231,
313 (2005) (listing proof of “approved deferred action
status” as sufficient “evidence of lawful status” for the
issuance of a driver’s license). The Supreme Court has also
recognized deferred action by name, describing the
24      REGENTS OF THE UNIV. OF CAL. V. USDHS

Executive’s “regular practice (which ha[s] come to be
known as ‘deferred action’) of exercising discretion for
humanitarian reasons or simply for its own convenience.”
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.
471, 483–84 (1999) (AADC). Thus, “it is well settled that
the Secretary [of Homeland Security] can exercise deferred
action.” Brewer II, 855 F.3d at 967.

    Official records of administrative discretion in
immigration enforcement date at least back to the turn of the
twentieth century, not long after the enactment of the
nation’s first general immigration statute in 1882. See Act
of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department
of Justice circular regarding statutorily authorized
denaturalization instructed that “as a general rule, good
cause is not shown for the institution of proceedings . . .
unless some substantial results are to be achieved thereby in
the way of betterment of the citizenship of the country.”
U.S. Dep’t of Justice, Circular Letter No. 107 (Sept. 20,
1909) (quoted in Memorandum from Sam Bernsen, Gen.
Counsel, INS, Legal Opinion Regarding Service Exercise of
Prosecutorial Discretion at 4 (Jul. 15, 1976) (Bernsen
Memorandum)).

    The government’s exercise of deferred action in
particular first came to light in the 1970s, as a result of
Freedom of Information Act litigation over the
government’s efforts to deport John Lennon and Yoko Ono,
apparently based on Lennon’s “British conviction for
marijuana possession.” Motomura, supra, at 28; see
generally Shoba Sivaprasad Wadhia, Beyond Deportation:
The Role of Prosecutorial Discretion in Immigration Cases
2–27 (2015). Then known as “nonpriority status,” the
practice had been observed in secret within the former
Immigration and Naturalization Service (INS) since at least
         REGENTS OF THE UNIV. OF CAL. V. USDHS              25

the 1950s, but INS officials had publicly denied its
existence. See Leon Wildes, The Nonpriority Program of
the Immigration and Naturalization Service Goes Public:
The Litigative Use of the Freedom of Information Act,
14 San Diego L. Rev. 42, 52–53 (1976); Wadhia, supra,
at 16. After the Lennon case revealed the practice, the INS
issued its first public guidance on the use of deferred action,
stating that “[i]n every case where the district director
determines that adverse action would be unconscionable
because of the existence of appealing humanitarian factors,
he shall recommend consideration for nonpriority.”
Immigration and Naturalization Service, Operations
Instructions § 103.1(a)(1)(ii) (1975) (quoted in Wadhia,
supra, at 17). Although the 1975 guidance was rescinded in
1997, DHS officials continue to apply the same
humanitarian factors in deciding whether to grant an
individual deferred action. 6 Gordon et al., supra,
§ 72.03[2][h] & nn.133–34; see also AADC, 525 U.S. at 484
n.8.

    In addition to case-by-case adjudications, the Executive
Branch has frequently applied deferred action and related
forms of discretionary relief programmatically, to entire
classes of otherwise removable noncitizens. Indeed, the
Congressional Research Service has compiled a list of
twenty-one such “administrative directives on blanket or
categorical deferrals of deportation” issued between 1976
and 2011. Andorra Bruno et al., Cong. Research Serv.,
Analysis of June 15, 2012 DHS Memorandum, Exercising
Prosecutorial Discretion with Respect to Individuals Who
Came to the United States as Children 20–23 (July 13,
2012); see also id. at 9 (“The executive branch has provided
blanket or categorical deferrals of deportation numerous
times over the years.”).
26        REGENTS OF THE UNIV. OF CAL. V. USDHS

    To take one early example, in 1956 President
Eisenhower extended immigration parole to over thirty
thousand Hungarian refugees who were otherwise unable to
immigrate to the United States because of restrictive quotas
then in existence. See White House Statement on the
Termination of the Emergency Program for Hungarian
Refugees (Dec. 28, 1957). The power to parole—that is, to
allow a noncitizen physically to enter the country, while
treating that person as “at the border” for purposes of
immigration law—is established by statute, but the version
of the INA in existence when President Eisenhower acted
did not explicitly authorize programmatic exercises of the
parole power. 2 Immigration and Nationality Act of 1952,
Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188. See
generally 6 Gordon et al., supra, § 62.01. Subsequent
presidents made use of similar categorical parole initiatives.
Wadhia, supra, at 30.

     Another salient example is the Family Fairness program,
established by the Reagan Administration and expanded
under President George H.W. Bush. The Immigration
Reform and Control Act of 1986 (IRCA) had provided a
pathway to legal status for hundreds of thousands of
undocumented noncitizens, but did not make any provision
for their close relatives unless those individuals separately
qualified under the Act’s criteria. See generally 3 Gordon et
al., supra, § 38.06. President Reagan’s INS Commissioner
interpreted IRCA not to authorize immigration benefits for

     2
       Indeed, there is evidence that “Congress originally intended that
parole would be used on a case-by-case basis on behalf of individual
aliens.” Cong. Research Serv., Review of U.S. Refugee Resettlement
Programs & Policies 8 (1980); see also S. Rep. No. 89-748, at 17 (1965).
The statute was amended in 1980 to expressly prohibit categorical grants
of parole. Refugee Act of 1980, Pub. L. No. 96-212, § 203(f), 94 Stat.
102, 108; see 8 U.S.C. § 1182(d)(5).
          REGENTS OF THE UNIV. OF CAL. V. USDHS                     27

anyone outside the statutory criteria, but nevertheless
exercised executive discretion to defer the deportation of the
minor children of noncitizens legalized under the statute.
Alan C. Nelson, Comm’r, INS, Legalization & Family
Fairness: An Analysis (Oct. 21, 1987). And in 1990, the INS
instituted “significant liberalizations” of the policy by
granting one-year periods of extended voluntary departure to
children and spouses of individuals legalized under IRCA
who could establish admissibility, continuous residency, and
a clean criminal record. INS Reverses Family Fairness
Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990); see
also 3 Gordon et al., supra, § 38.06. Contemporary
estimates by INS officials of the number of people
potentially eligible ranged as high as 1.5 million. 3 See
Immigration Act of 1989 (Part 2): Hearings Before the
Subcomm. on Immigration, Refugees & Int’l Law of the H.
Comm. on the Judiciary, 101st Cong. 49, 56 (1990)
(testimony of Gene McNary, Comm’r, INS). Extended
voluntary departure, the mechanism through which these
individuals were allowed to remain in the United States is,
like deferred action, a creature of executive discretion not
specifically authorized by statute. See Hotel & Rest. Emps.
Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir.
1988) (en banc) (opinion of Mikva, J.).

    Since then, the immigration agency has instituted
categorical deferred action programs for self-petitioners
under the Violence Against Women Act; applicants for T

    3
       There is some controversy surrounding this number. See generally
Unconstitutionality of Obama’s Executive Actions on Immigration:
Hearing Before the House Comm. on the Judiciary, 114th Cong. 84–85
(2015) (written testimony of Professor Stephen H. Legomsky). But even
the lowest reported contemporary estimate was that 100,000 people
would actually benefit from the program, indicating a major policy
initiative. See INS Reverses Family Fairness Policy, supra.
28        REGENTS OF THE UNIV. OF CAL. V. USDHS

and U visas (which are issued to victims of human
trafficking and of certain crimes, respectively); foreign
students unable to fulfill their visa requirements after
Hurricane Katrina; and widowed spouses of United States
citizens who had been married less than two years. None of
these deferred action programs was expressly authorized by
statute at the time they were initiated.

B. The DACA Program

    DACA was announced in a June 15, 2012, memorandum
from Secretary of Homeland Security Janet Napolitano,4
entitled “Exercising Prosecutorial Discretion with Respect
to Individuals Who Came to the United States as Children.”
Secretary Napolitano explained that the nation’s
immigration laws “are not designed . . . to remove
productive young people to countries where they may not
have lived or even speak the language,” especially where
“many of these young people have already contributed to our
country in significant ways,” and, because they were brought
here as children, “lacked the intent to violate the law.” She
therefore determined that “[p]rosecutorial discretion, which
is used in so many other areas, is especially justified here.”

    The Napolitano memorandum thus laid out the basic
criteria of the DACA program, under which a noncitizen will
be considered for a grant of deferred action if he or she:

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




    4
      Napolitano is a party to this appeal in her current capacity as
President of the University of California.
           REGENTS OF THE UNIV. OF CAL. V. USDHS               29

   •     has continuously resided in the United States for at
         least five years preceding [June 15, 2012] and is
         present in the United States on [June 15, 2012];

   •     is currently in school, has graduated from high
         school, has obtained a general education
         development certificate, or is an honorably
         discharged veteran of the Coast Guard or Armed
         Forces of the United States;

   •     has not been convicted of a felony offense, a
         significant misdemeanor offense, or multiple
         misdemeanor offenses, nor otherwise poses a threat
         to national security or public safety; and

   •     is not above the age of thirty [on June 15, 2012].5

    DACA applicants must submit extensive personal
information to DHS, along with fees totaling nearly $500.
Applicants also submit to biometric screening in which they
are photographed and fingerprinted, enabling extensive
biographical and biometric background checks. If those
checks come back clean, each application is then evaluated
for approval by DHS personnel on a case-by-case basis.

    If approved into the DACA program, an applicant is
granted a renewable two-year term of deferred action—
again, “a form of prosecutorial discretion whereby the
Department of Homeland Security declines to pursue the
removal of a person unlawfully present in the United States.”
Brewer II, 855 F.3d at 967. In addition to the deferral of
removal itself, pre-existing DHS regulations allow all
deferred-action recipients to apply for employment

   5
       This criterion became known as the “age cap.”
30        REGENTS OF THE UNIV. OF CAL. V. USDHS

authorization, enabling them to work legally and pay taxes.
8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch
to authorize the employment of noncitizens); 8 C.F.R.
§ 274a.12(c)(14) (providing that “[a]n alien who has been
granted deferred action” is eligible for work authorization
upon a showing of “economic necessity for employment”).
Indeed, “DACA recipients are required to apply for
employment authorization, in keeping with the Executive’s
intention that DACA recipients remain ‘productive’
members of society.” Ariz. Dream Act Coal. v. Brewer,
757 F.3d 1053, 1062 (9th Cir. 2014) (Brewer I) (emphasis in
original). Finally, DHS does not consider deferred-action
recipients, including those benefitting from DACA, to
accrue “unlawful presence” for purposes of the INA’s re-
entry bars. 6 8 U.S.C. § 1182(a)(9)(B)(ii); see Brewer I,
757 F.3d at 1059.


     6
      8 U.S.C. §§ 1182(a)(9)(B)(i)(I)–(II) establish a three-year and ten-
year bar on admission after specified periods of “unlawful presence.”
Additionally, 8 U.S.C. § 1182(a)(9)(C) provides a permanent bar on
admission for immigrants who have accrued an aggregate of more than
one year of “unlawful presence” and who later attempt to cross the border
clandestinely. As the district court noted below, DHS “excludes
recipients of deferred action from being ‘unlawfully present’ because
their deferred action is considered a period of stay authorized by the
government.” Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011,
1039 (N.D. Cal. 2018). As DHS noted in its DACA Frequently Asked
Questions (FAQs), “[f]or purposes of future inadmissibility based upon
unlawful presence, an individual whose case has been deferred is not
considered to be unlawfully present during the period in which deferred
action is in effect.” Importantly, however, “deferred action does not
confer lawful status upon an individual, nor does it excuse any previous
or subsequent periods of unlawful presence.”

     The FAQs are attached as an exhibit to the Regents complaint, and
are cited pervasively throughout the Garcia complaint. See United
States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that for
          REGENTS OF THE UNIV. OF CAL. V. USDHS                       31

    In an attempt to build on the success of the DACA
program, in 2014 Secretary of Homeland Security Jeh
Johnson issued a separate memorandum that both announced
the related Deferred Action for Parents of Americans and
Lawful Permanent Residents program (DAPA), which
allowed deferred action for certain noncitizen parents of
American citizens and lawful permanent residents, and
expanded DACA by (1) removing the age cap, (2) extending
the term of deferred-action and related work-authorization
grants from two to three years, and (3) moving up the cutoff
date by which an applicant must have been in the United
States to January 1, 2010. Twenty-six states challenged this
extension in federal court, arguing that DAPA is
unconstitutional. All of the policies outlined in the Johnson
memorandum were enjoined nationwide in a district court
order upheld by the Fifth Circuit and affirmed by an equally
divided Supreme Court. See United States v. Texas, 136 S.
Ct. 2271 (2016); Texas v. United States, 809 F.3d 134 (5th
Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D.
Tex. 2015); see also Neil v. Biggers, 409 U.S. 188, 192
(1972) (affirmance by an equally divided court has no
precedential value). The original DACA program remained
in effect.

    In 2017, a new presidential administration took office,
bringing with it a change in immigration policy. On
February 20, 2017, then-Secretary of Homeland Security
John Kelly issued a memorandum that set out the


purposes of a motion to dismiss, “[c]ertain written instruments attached
to pleadings may be considered part of the pleading. Even if a document
is not attached to a complaint, it may be incorporated by reference into a
complaint if the plaintiff refers extensively to the document or the
document forms the basis of the plaintiff’s claim.” (internal citation
omitted)).
32      REGENTS OF THE UNIV. OF CAL. V. USDHS

administration’s new enforcement priorities, stating that “the
Department no longer will exempt classes or categories of
removable aliens from potential enforcement.” However,
the memorandum explicitly left DACA and DAPA in place.
In a second memorandum issued June 15, 2017, after
“consider[ing] a number of factors, including the
preliminary injunction in the [Texas] matter, the ongoing
litigation, the fact that DAPA never took effect, and our new
immigration enforcement priorities,” Secretary Kelly
rescinded DAPA as an “exercise of [his] discretion.”

    Then, on June 28, 2017, Texas Attorney General Ken
Paxton wrote to United States Attorney General Jefferson B.
Sessions III threatening that if the federal government did
not rescind DACA by September 5, 2017, Paxton would
amend the complaint in the Texas litigation to challenge
DACA as well as DAPA.

    On September 4, 2017, the day before Paxton’s deadline,
Attorney General Sessions sent his own letter to Acting
Secretary of Homeland Security Elaine Duke. The Attorney
General’s letter “advise[d] that the Department of Homeland
Security . . . should rescind” the DACA memorandum based
on his legal opinion that the Department lacked statutory
authority to have created DACA in the first place. He wrote:

       DACA was effectuated by the previous
       administration through executive action,
       without proper statutory authority and with
       no established end-date, after Congress’[s]
       repeated rejection of proposed legislation that
       would have accomplished a similar result.
       Such an open-ended circumvention of
       immigration laws was an unconstitutional
       exercise of authority by the Executive
       Branch.
        REGENTS OF THE UNIV. OF CAL. V. USDHS            33

The Attorney General further opined that “[b]ecause the
DACA policy has the same legal and constitutional defects
that the courts recognized as to DAPA, it is likely that
potentially imminent litigation would yield similar results
with respect to DACA.”

     The very next day, following the Attorney General’s
directive, Acting Secretary Duke issued a memorandum
rescinding DACA. The memorandum begins with a
“Background” section that covers DACA, DAPA, the Texas
litigation, Secretary Kelly’s previous memoranda, Texas
Attorney General Paxton’s threat, and the Attorney
General’s letter. Then, in the section titled “Rescission of
the June 15, 2012 DACA Memorandum,” the Duke
memorandum states:

       Taking into consideration the Supreme
       Court’s and the Fifth Circuit’s rulings in the
       ongoing litigation, and the September 4, 2017
       letter from the Attorney General, it is clear
       that the June 15, 2012 DACA program
       should be terminated. In the exercise of my
       authority     in     establishing      national
       immigration policies and priorities, except
       for the purposes explicitly identified below, I
       hereby rescind the June 15, 2012
       memorandum.

The Duke memorandum further states that although DHS
would stop accepting initial DACA requests effective
immediately, the agency would provide a one-month
window in which renewal applications could be filed for
current DACA beneficiaries whose benefits were set to
expire before March 5, 2018. It also states that DHS would
not terminate existing grants of deferred action under DACA
34       REGENTS OF THE UNIV. OF CAL. V. USDHS

“solely based on the directives in this memorandum.” Thus,
beginning on March 5, 2018, each DACA recipient’s grant
of deferred action would be allowed to expire at the end of
its two-year term. As of September 4, 2017—the day before
the rescission—approximately 689,800 individuals were
enrolled in DACA.

C. Procedural History

    The rescission of DACA instantly sparked litigation
across the country, including the cases on appeal here. Suits
were filed in the Northern District of California by the
Regents of the University of California, a group of states led
by California, the City of San Jose, the County of Santa
Clara and Service Employees International Union Local 521,
and a group of individual DACA recipients led by Dulce
Garcia. The complaints included claims that the rescission
was arbitrary and capricious under the Administrative
Procedure Act (APA); that it was a substantive rule requiring
notice-and-comment rulemaking under the APA; that it
violated the due process and equal protection rights
protected by the U.S. Constitution; and that DHS was
equitably estopped from using the information provided on
DACA applications for enforcement purposes. The cases
were consolidated before Judge William Alsup in the
District Court for the Northern District of California and
proceeded to litigation.

    On October 17, 2017, the district court ordered the
government to complete the administrative record, holding
that the record proffered by the government was incomplete
in several respects. Seeking to avoid providing additional
documents, the government filed a petition for mandamus.
In arguing its mandamus petition, the government took the
position that the legality of the rescission should stand or fall
based solely on the reasons and the record already provided
         REGENTS OF THE UNIV. OF CAL. V. USDHS                 35

by the government. We denied the mandamus petition,
stating that “the notion that the head of a United States
agency would decide to terminate a program giving legal
protections to roughly 800,000 people based solely on 256
pages of publicly available documents is not credible, as the
district court concluded.” In re United States, 875 F.3d
1200, 1206 (9th Cir. 2017) (footnotes omitted).

    The government next petitioned the Supreme Court for
the same mandamus relief; the Court did not reach the merits
of the administrative record dispute, but instead instructed
the district court to rule on the government’s threshold
arguments challenging reviewability of its rescission
decision before requiring the government to provide
additional documents. In re United States, 138 S. Ct. 443,
445 (2017). Thus, the administrative record in this case still
consists of a scant 256 publicly available pages, roughly
three-quarters of which are taken up by the three published
judicial opinions from the Texas litigation.

    Returning to the district court, the government moved to
dismiss the consolidated cases on jurisdictional grounds and
for failure to state a claim, while the plaintiffs moved for a
preliminary injunction. The district court granted the request
for a nationwide preliminary injunction, holding that most of
the plaintiffs had standing; 7 that neither the APA nor the
INA barred judicial review; and that plaintiffs were likely to
succeed on their claim that the decision to rescind DACA
was arbitrary and capricious. The district court therefore
entered a preliminary injunction requiring DHS to adjudicate
renewal applications for existing DACA recipients.


    7
      Two states were dismissed from the case with leave to amend.
That decision is not challenged on appeal.
36       REGENTS OF THE UNIV. OF CAL. V. USDHS

    In a separate order, the court partially granted and
partially denied the government’s motion to dismiss. The
court dismissed plaintiffs’ notice-and-comment and
Regulatory Flexibility Act claims; a due process claim
premised on an entitlement to deferred action; and the
equitable estoppel claim. The court denied the motion as to
plaintiffs’ equal protection claim and a due process claim
premised on an alleged change in DHS’s information-
sharing policy.

    The district court certified the issues addressed in both
its orders for interlocutory review under 28 U.S.C.
§ 1292(b). We granted the government’s petition for
permission to appeal the orders. Plaintiffs cross-appealed,
asserting that the district court erroneously dismissed their
notice-and-comment and due process claims.

                              II.

    “We review the district court’s decision to grant or deny
a preliminary injunction for abuse of discretion.” Hernandez
v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (quoting Sw.
Voter Registration Educ. Project v. Shelley, 344 F.3d 914,
918 (9th Cir. 2003) (en banc) (per curiam)). Within this
inquiry, “[w]e review the district court’s legal conclusions
de novo, the factual findings underlying its decision for clear
error.” Id. (quoting K.W. ex rel. D.W. v. Armstrong,
789 F.3d 962, 969 (9th Cir. 2015)). A district court’s
decision on a motion to dismiss for lack of subject matter
jurisdiction or for failure to state a claim is also reviewed de
novo. See, e.g., Davidson v. Kimberly-Clark Corp., 889 F.3d
956, 963 (9th Cir. 2017).
          REGENTS OF THE UNIV. OF CAL. V. USDHS                       37

                                  III.

    The threshold question in this case is in many ways also
the most pivotal: is Acting Secretary Duke’s decision to
rescind the DACA program reviewable by the courts at all?
The government contends that both the APA and the INA
bar judicial review; we address each statute in turn.

A. Reviewability under the APA

    The APA provides for broad judicial review of agency
action: “A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial
review thereof.” 5 U.S.C. § 702. Thus, as a general matter,
the Supreme Court has consistently articulated “a ‘strong
presumption’ favoring judicial review of administrative
action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651
(2015) (quoting Bowen v. Mich. Acad. of Family Physicians,
476 U.S. 667, 670 (1986)); see also, e.g., Lincoln v. Vigil,
508 U.S. 182, 190 (1993) (“[W]e have read the APA as
embodying a ‘basic presumption of judicial review.’”)
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140
(1967)).

     However, the APA also forecloses judicial review under
its procedures to the extent that “agency action is committed
to agency discretion by law.” 5 U.S.C. § 701(a)(2). 8 “This

    8
      This bar does not affect a plaintiff’s ability to bring freestanding
constitutional claims. See Webster v. Doe, 486 U.S. 592, 601–05 (1988);
Padula v. Webster, 822 F.2d 97, 101 (D.C. Cir. 1987) (“[E]ven where
agency action is ‘committed to agency discretion by law,’ review is still
available to determine if the Constitution has been violated.” (quoting
Doe v. Casey, 796 F.2d 1508, 1517–18 n.33 (1986), aff’d in part, rev’d
in part on other grounds, Webster v. Doe, 486 U.S. 592 (1988))).
38      REGENTS OF THE UNIV. OF CAL. V. USDHS

is a very narrow exception” that comes into play only “in
those rare instances where statutes are drawn in such broad
terms that in a given case there is no law to apply.” Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1971) (internal quotation marks omitted), abrogated on
other grounds by Califano v. Sanders, 430 U.S. 99 (1977);
see also Heckler v. Chaney, 470 U.S. 821, 830 (1985)
(“[R]eview is not to be had if the statute is drawn so that a
court would have no meaningful standard against which to
judge the agency’s exercise of discretion.”).

    In Heckler v. Chaney, the Supreme Court analyzed this
exception in considering “the extent to which a decision of
an administrative agency to exercise its ‘discretion’ not to
undertake certain enforcement actions is subject to judicial
review under the [APA].” 470 U.S. at 823. In Chaney, the
Commissioner of the Food and Drug Administration (FDA)
declined to take investigatory and enforcement action
against state prison officials’ use of drugs, which had been
FDA-approved for medical use, in human executions. Id. at
823–24. A group of prisoners on death row had petitioned
the FDA, arguing that using the drugs to execute humans
was unlawful because they were only approved for medical
use, and not for executions. Id. Responding to the petition,
the Commissioner questioned whether the FDA had
jurisdiction to prohibit the use of drugs in executions, but
went on to conclude that even if the agency did have
jurisdiction, it would “decline to exercise it under [the
agency’s] inherent discretion to” do so. Id. at 824. The
inmates then sued the FDA, attempting to invoke the APA’s
framework for judicial review. Id. at 825.

    The Supreme Court held that the FDA Commissioner’s
discretionary decision not to enforce the Food, Drug, and
Cosmetic Act against state prison officials was unreviewable
           REGENTS OF THE UNIV. OF CAL. V. USDHS                      39

under the APA. Chaney, 470 U.S. at 837–38. The Court
identified a pre-APA “tradition” under which “an agency’s
decision not to prosecute or enforce . . . is a decision
generally committed to an agency’s absolute discretion,” and
concluded that “the Congress enacting the APA did not
intend to alter that tradition.” Id. at 831–32. As the Court
summed up its holding, “[t]he general exception to
reviewability provided by § 701(a)(2) for action ‘committed
to agency discretion’ remains a narrow one, but within that
exception are included agency refusals to institute
investigative or enforcement proceedings, unless Congress
has indicated otherwise.” Id. at 838 (citation omitted). That
is, the normal presumption in favor of judicial review is
reversed when the agency action in question is a refusal to
enforce the substantive law.

    Importantly for present purposes, the Court explicitly
left open the question whether “a refusal by the agency to
institute proceedings based solely on the belief that it lacks
jurisdiction” might be reviewable notwithstanding this
general rule. Chaney, 470 U.S. at 833 n.4 (“[W]e express no
opinion on whether such decisions would be unreviewable
under § 701(a)(2) . . . .”). 9 This reservation makes perfect

   9
       Chaney’s footnote 4 reads in its entirety:

                We do not have in this case a refusal by the agency
          to institute proceedings based solely on the belief that
          it lacks jurisdiction. Nor do we have a situation where
          it could justifiably be found that the agency has
          “consciously and expressly adopted a general policy”
          that is so extreme as to amount to an abdication of its
          statutory responsibilities.      See, e.g., Adams v.
          Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159
          (1973) (en banc). Although we express no opinion on
          whether such decisions would be unreviewable under
40        REGENTS OF THE UNIV. OF CAL. V. USDHS

sense. It is one thing to read the APA’s exception for
“agency action [] committed to agency discretion by law” as
including the Executive’s discretionary decisions to decline
enforcement, given a pre-existing legal tradition that had
treated those decisions as unreviewable. It would be quite
another to say that an agency’s non-discretionary belief that
it lacked the power to enforce the law was similarly
“committed to agency discretion.” 5 U.S.C. § 701(a)(2); see
Chaney, 470 U.S. at 833 n.4 (“[W]e note that in those
situations [involving a belief that the agency lacked
discretion,] the statute conferring authority on the agency
might indicate that such decisions were not ‘committed to
agency discretion.’”).

    Several years after Chaney, our court directly addressed
the question that the Supreme Court had left open. In
Montana Air Chapter No. 29 v. Federal Labor Relations
Authority, a union representing civilian Air National Guard
employees filed an unfair labor practice charge against the
National Guard Bureau, but the Federal Labor Relations
Authority (FLRA) refused to issue a complaint. 898 F.2d
753, 755 (9th Cir. 1990). The opinion letters issued by
FLRA’s general counsel indicated that he had “determined,
according to his interpretation of the statutes and regulations,
that he lacked jurisdiction to issue an unfair labor practice
complaint” under the circumstances. Id. at 757.

   Acknowledging Chaney’s rule that “[a]n agency’s
decision not to take enforcement action . . . is presumed to

         § 701(a)(2), we note that in those situations the statute
         conferring authority on the agency might indicate that
         such decisions were not “committed to agency
         discretion.”

     Heckler v. Chaney, 470 U.S. 821, 833 n.4 (emphasis added).
           REGENTS OF THE UNIV. OF CAL. V. USDHS                         41

be immune from judicial review,” we noted that the Supreme
Court had nevertheless “suggested that discretionary
nonenforcement decisions may be reviewable when” the
refusal to enforce is based on a supposed lack of jurisdiction.
Id. at 756 (citing Chaney, 470 U.S. at 833 n.4). We took the
next logical step, holding that Chaney’s presumption of
nonreviewability “may be overcome if the refusal is based
solely on the erroneous belief that the agency lacks
jurisdiction.” Id. at 754. Because “the General Counsel’s
decision not to issue an unfair labor practice complaint was
based on his belief that he lacked jurisdiction to issue such a
complaint,” we proceeded to “examine the General
Counsel’s statutory and regulatory interpretations to
determine if his belief that he lacked jurisdiction was
correct.” Id. at 757. 10

    The final piece of the APA reviewability puzzle is the
Supreme Court’s decision in City of Arlington v. FCC,
569 U.S. 290 (2013). There, the Court was faced with the
question whether an agency’s determination of its own
jurisdiction is entitled to the same deference as any other
agency interpretation under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
Writing for the Court, Justice Scalia explained in no
uncertain terms that in the context of administrative
agencies, “the distinction between ‘jurisdictional’ and
‘nonjurisdictional’ interpretations is a mirage.” City of

    10
       We reject the government’s reading of Montana Air, under which
the Chaney presumption would be overcome only if the agency action is
based on a belief in a lack of jurisdiction, and the refusal to enforce is so
extreme as to become an abdication of the agency’s statutory
responsibilities. Both Chaney and Montana Air make clear that these are
two independent exceptions to the narrow rule of nonreviewability, not
two elements of a single test. Chaney, 470 U.S. at 833 n.4; Montana Air,
898 F.2d at 756.
42        REGENTS OF THE UNIV. OF CAL. V. USDHS

Arlington, 569 U.S. at 297. With respect to courts, the
jurisdictional/nonjurisdictional divide is a real and
consequential one, because “[a] court’s power to decide a
case is independent of whether its decision is correct . . . .
Put differently, a jurisdictionally proper but substantively
incorrect judicial decision is not ultra vires.” Id. But the
same is not true with respect to agencies: “Both their power
to act and how they are to act is authoritatively prescribed by
Congress, so that when they act improperly, no less than
when they act beyond their jurisdiction, what they do is ultra
vires.” Id. Thus, the Court concluded, “[t]he reality, laid
bare, is that there is no difference, insofar as the validity of
agency action is concerned, between an agency’s exceeding
the scope of its authority (its ‘jurisdiction’) and its exceeding
authorized application of authority that it unquestionably
has.” Id. at 299 (emphasis in original). 11

    To summarize, Chaney holds that an agency’s refusal to
enforce the substantive law is presumptively unreviewable
because that discretionary nonenforcement function is
“committed to agency discretion” within the meaning of the
APA. Montana Air builds upon the question left open by
Chaney’s footnote four, explaining that a nonenforcement
decision is reviewable notwithstanding Chaney if the
decision was based solely on the agency’s belief that it
lacked jurisdiction to act. And City of Arlington teaches that
there is no difference between an agency that lacks

     11
        The opinion is replete with equally emphatic—and equally
quotable—formulations of the same point. See, e.g., City of Arlington,
569 U.S. at 301 (“In sum, judges should not waste their time in the
mental acrobatics needed to decide whether an agency’s interpretation of
a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those
labels are sheared away, it becomes clear that the question in every case
is, simply, whether the statutory text forecloses the agency’s assertion of
authority, or not.”).
         REGENTS OF THE UNIV. OF CAL. V. USDHS               43

jurisdiction to take a certain action, and one that is barred by
the substantive law from doing the same; the question “is
always, simply, whether the agency has stayed within the
bounds of its statutory authority.” City of Arlington,
569 U.S. at 297 (emphasis omitted). The rule that emerges
is this: an agency’s nonenforcement decision is outside the
scope of the Chaney presumption—and is therefore
presumptively reviewable—if it is based solely on a belief
that the agency lacked the lawful authority to do otherwise.
That is, where the agency’s decision is based not on an
exercise of discretion, but instead on a belief that any
alternative choice was foreclosed by law, the APA’s
“committed to agency discretion” bar to reviewability,
5 U.S.C. § 701(a)(2), does not apply.

    This rule is fully consistent with the Supreme Court’s
decision in ICC v. Brotherhood of Locomotive Engineers
(BLE), which rejected the notion that “if the agency gives a
‘reviewable’ reason for otherwise unreviewable action, the
action becomes reviewable.” 482 U.S. 270, 283 (1987). We
have no quarrel with that statement in the abstract, but as
applied it simply begs the question: is the agency action in
question “otherwise unreviewable”?

    The BLE case concerned the reviewability of the
Interstate Commerce Commission’s denial of a motion to
reopen proceedings on grounds of material error. Id. at 280.
The Supreme Court held that category of agency action
presumptively unreviewable because it “perceive[d] . . . a
similar tradition of nonreviewability” to the one it had found
in Chaney for nonenforcement decisions. Id. at 282. In
reaching its holding, the Court rejected an argument that
there was nevertheless “law to apply”—and that therefore
the action was not committed to agency discretion—as the
agency’s order had discussed the legal merits at length. Id.
44         REGENTS OF THE UNIV. OF CAL. V. USDHS

at 280–81. What mattered was that the agency’s “formal
action” was one for which a tradition of nonreviewability
was discernable, regardless of how the agency explained its
action. 12 Id.

    BLE thus stands for the proposition that if a particular
type of agency action is presumptively unreviewable, the
fact that the agency explains itself in terms that are judicially
cognizable does not change the categorical rule. Fair
enough. But the categorical rule announced in Chaney does
not encompass nonenforcement decisions based solely on
the agency’s belief that it lacked power to take a particular
course; instead, the Court explicitly declined to extend its
rule to that situation. Chaney, 470 U.S. at 833 n.4. And in
Montana Air, we held that such decisions are reviewable.
898 F.2d at 754. BLE’s statement about “otherwise
unreviewable” agency decisions, 482 U.S. at 283, therefore
has no application to the category of agency action at issue
here.

   We believe the analysis laid out above follows
necessarily from existing doctrine. And, just as importantly,



     12
        The Court gave as an example a prosecutor’s refusal to institute
criminal proceedings based on her “belief . . . that the law will not sustain
a conviction.” BLE, 482 U.S. at 283. Such a belief is not equivalent to
a conclusion that the government lacked the power to institute a
prosecution in the first place. For one colorful example, in Bond v.
United States, prosecutors made the “surprising” decision to charge “an
amateur attempt by a jilted wife to injure her husband’s lover” under the
federal statute implementing the international Convention on Chemical
Weapons. 134 S. Ct. 2077, 2083–84 (2014). While the Court ultimately
interpreted the statute not to encompass the charged conduct, id. at 2093–
94, no one suggested that the government’s aggressive decision to
institute the prosecution was itself ultra vires.
        REGENTS OF THE UNIV. OF CAL. V. USDHS              45

this approach also promotes values fundamental to the
administrative process.

    First, the Montana Air rule does not impermissibly
encroach on executive discretion; to the contrary, it
empowers the Executive. If an agency head is mistaken in
her assessment that the law precludes one course of action,
allowing the courts to disabuse her of that incorrect view of
the law does not constrain discretion, but rather opens new
vistas within which discretion can operate. That is, if an
administrator chooses option A for the sole reason that she
believes option B to be beyond her legal authority, a decision
from the courts putting option B back on the table allows a
reasoned, discretionary policy choice between the two
courses of action. And if the agency’s view of the law is
instead confirmed by the courts, no injury to discretion
results because the status quo is preserved.

    Moreover, allowing judicial review under these
circumstances serves the critical function of promoting
accountability within the Executive Branch—not
accountability to the courts, but democratic accountability to
the people. Accountability in this sense is fundamental to
the legitimacy of the administrative system: although they
are “unelected . . . bureaucrats,” City of Arlington, 569 U.S.
at 305, the heads of cabinet-level departments like DHS “are
subject to the exercise of political oversight and share the
President’s accountability to the people.” Freytag v.
Comm’r of Internal Revenue, 501 U.S. 868, 886 (1991).
Indeed, the Constitution’s “Appointments Clause was
designed to ensure public accountability for . . . the making
of a bad appointment . . . .” Edmond v. United States,
520 U.S. 651, 660 (1997); see also Elena Kagan,
Presidential Administration, 114 Harv. L. Rev. 2245, 2251–
52 (2001) (“[A]ccountability” is one of the two “principal
46      REGENTS OF THE UNIV. OF CAL. V. USDHS

values that all models of administration must attempt to
further.”); 1 Richard J. Pierce, Jr., Administrative Law
Treatise 114 (5th ed. 2010) (“Agencies are politically
accountable because the President is accountable for the
actions of agencies.”).

    This democratic responsiveness is especially critical for
agencies exercising prosecutorial functions because, as
Justice Scalia explained in his oft-cited dissent in Morrison
v. Olson, “[u]nder our system of government, the primary
check against prosecutorial abuse is a political one.”
487 U.S. 654, 728 (1988) (Scalia, J., dissenting). This check
works because “when crimes are not investigated and
prosecuted fairly, nonselectively, with a reasonable sense of
proportion, the President pays the cost in political damage to
his administration.” Id. at 728–29. In other words, when
prosecutorial functions are exercised in a manner that is
within the law but is nevertheless repugnant to the
sensibilities of the people, “the unfairness will come home
to roost in the Oval Office.” Id. at 729.

    But public accountability for agency action can only be
achieved if the electorate knows how to apportion the praise
for good measures and the blame for bad ones. Without
knowing the true source of an objectionable agency action,
“the public cannot ‘determine on whom the blame or the
punishment of a pernicious measure, or series of pernicious
measures ought really to fall.’” Free Enter. Fund v. Pub.
Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010)
(quoting The Federalist No. 70, at 476 (Alexander Hamilton)
(Jacob E. Cooke ed. 1961)). In then-Professor Kagan’s
words, “the degree to which the public can understand the
sources and levers of bureaucratic action” is “a fundamental
precondition of accountability in administration.” Kagan,
supra, at 2332.
          REGENTS OF THE UNIV. OF CAL. V. USDHS                     47

    The Montana Air rule promotes accountability by
ensuring that the public knows where to place blame for an
unpopular measure. When an agency justifies an action
solely with an assertion that the law prohibits any other
course, it shifts responsibility for the outcome from the
Executive Branch to Congress (for making the law in
question) or the courts (for construing it). If the Executive
is correct in its interpretation of the law, then the public is
correct to blame the other two branches for any resulting
problems. But if the Executive is wrong, then it avoids
democratic accountability for a choice that was the agency’s
to make all along. Allowing the judiciary—the branch
ultimately responsible for interpreting the law, see Marbury,
5 U.S. (1 Cranch) at 177—to review such decisions prevents
this anti-democratic and untoward outcome. As Judge Bates
of the District Court for the District of Columbia aptly put
the point in confronting the very issue we face here, “an
official cannot claim that the law ties her hands while at the
same time denying the courts’ power to unbind her. She may
escape political accountability or judicial review, but not
both.” NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C.
2018).

    We therefore must determine whether the Acting
Secretary’s decision to end DACA was based solely on a
belief that the program was unlawful, such that the Chaney
presumption does not apply. 13


    13
       Because we take this doctrinal course, we need not decide whether
the rescission of DACA would be reviewable absent the exception
reflected in Montana Air and Chaney’s footnote four. But we do note
several points. First, a literal reading of Chaney’s language would not
even encompass the decision to rescind DACA, since Chaney by its own
terms applies only to “agency decisions not to undertake enforcement
action.” 470 U.S. at 832 (emphasis added). Nowhere does the opinion
48        REGENTS OF THE UNIV. OF CAL. V. USDHS

    We take Attorney General Sessions literally at his word
when he wrote to Acting Secretary Duke that “DACA was
effectuated . . . without proper statutory authority,” and that
DACA “was an unconstitutional exercise of authority by the
Executive Branch.” These are the reasons he gave for
advising Acting Secretary Duke to rescind DACA. We


suggest the broader proposition that any decision simply related to
enforcement should be presumed unreviewable. Our court’s dicta in
Morales de Soto v. Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016), which
addressed a completely separate issue of jurisdiction under the INA, is
not to the contrary. Thus, to the extent that the Montana Air exception
might not seem a perfect fit for the rescission of DACA—which was not
exactly a decision not to enforce—the Chaney presumption itself shares
the same defect. There is no daylight between the Chaney rule and the
Montana Air exception in terms of the type of agency action to which
they apply. So if the rescission of DACA were outside the Montana Air
exception by virtue of not being strictly a nonenforcement decision, it
would also fall outside the Chaney presumption of unreviewability in the
first place.

     Second, the D.C. Circuit has developed a line of cases explaining
that while Chaney bars judicial review of a “single-shot nonenforcement
decision,” on the other hand, “an agency’s adoption of a general
enforcement policy is subject to review.” OSG Bulk Ships, Inc. v. United
States, 132 F.3d 808, 812 (D.C. Cir. 1998) (quoting Crowley Caribbean
Transp., Inc. v. Pena, 37 F.3d 671, 674–75 (D.C. Cir. 1994)); see also
Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Nat’l Treasury
Emps. Union v. Horner, 854 F.2d 490, 496–97 (D.C. Cir. 1988).

     Thus, every one of the four courts that has considered the question
has held that the rescission of DACA is reviewable under the APA,
although each has employed slightly different reasoning for that
conclusion. See NAACP v. Trump, 298 F. Supp. 3d 209, 226–34 (D.D.C.
2018); Casa de Md. v. DHS, 284 F. Supp. 3d 758, 769–70 (D. Md. 2018);
Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1029–31 (N.D.
Cal. 2018) (decision below); Batalla Vidal v. Duke, 295 F. Supp. 3d 127,
147–52 (E.D.N.Y. 2017).
          REGENTS OF THE UNIV. OF CAL. V. USDHS                      49

therefore agree with the district court that the basis for the
rescission was a belief that DACA was unlawful, and that
the discretionary “litigation risk” rationale pressed by the
government now is a mere post-hoc rationalization put
forward for purposes of this litigation. 14 Acting Secretary
Duke’s September 5, 2017, rescission memorandum
contains exactly one sentence of analysis:

         Taking into consideration the Supreme
         Court’s and the Fifth Circuit’s rulings in the
         ongoing litigation, and the September 4, 2017
         letter from the Attorney General, it is clear
         that the June 15, 2012 DACA program
         should be terminated.

   In the next sentence, the Acting Secretary went on to
announce the rescission itself:

         In the exercise of my authority in establishing
         national immigration policies and priorities,
         except for the purposes explicitly identified
         below, I hereby rescind the June 15, 2012
         memorandum.

    The easy rejoinder to the government’s insistence that
the Acting Secretary rescinded DACA due to “litigation
risks” is that the Acting Secretary did not mention “litigation
risks” as a “consideration.” And both “consideration[s]”
    14
       After hundreds of pages of briefing and over an hour of oral
argument, it remains less than clear how “litigation risk” differs from a
substantive belief that DACA is illegal. We take the term to refer to a
concern that DACA would be abruptly enjoined, regardless of whether
the program was illegal or not. Of course, such a concern is not
independent of an on-the-merits assessment of DACA’s legality.
50        REGENTS OF THE UNIV. OF CAL. V. USDHS

actually enumerated by the Acting Secretary are most
naturally read as supporting a rationale based on DACA’s
illegality. The “ongoing litigation” referenced is of course
Texas v. United States, in which the Fifth Circuit upheld a
preliminary injunction against the related DAPA policy, and
the Supreme Court affirmed by an equally divided vote.15
See Texas, 136 S. Ct. 2271 (2016); Texas, 809 F.3d 134 (5th
Cir. 2015). The “rulings” in that case are propositions of
law—taken alone, they are more readily understood as
supporting a legal conclusion (DACA is illegal) than a
pragmatic one (DACA might be enjoined). The pragmatic
interpretation requires extra analytical steps (someone might
sue to enjoin DACA, and they might win) that are entirely
absent from the list of factors that the Acting Secretary stated
she was “taking into consideration” in making her decision.
Acting Secretary Duke easily could have included “the
prospect of litigation challenging DACA” in her list of
considerations; had she done so, then perhaps the reference
to the Texas litigation could be read as supporting a practical
worry about an injunction. 16 Absent that, however, the
mention of the courts’ “rulings” is best read as referencing
the courts’ legal conclusions.

    Attorney General Sessions’s September 4, 2017, letter
likewise focuses on the supposed illegality of DACA, rather

     15
        This conclusion is only bolstered by the fact that the government’s
production of the “administrative record” in this case includes the
entirety of the three published judicial opinions in the Texas litigation.

     16
       The Acting Secretary did reference Texas Attorney General Ken
Paxton’s threat to amend the Texas suit to include DACA, but she did so
in the “Background” section of her memorandum. If anything, the
inclusion of the threat in the background portion renders its omission
from the list of factors the Acting Secretary was actually “[t]aking into
consideration” all the more stark.
        REGENTS OF THE UNIV. OF CAL. V. USDHS              51

than any alleged “litigation risk.” Its substantive paragraph
states

       DACA was effectuated . . . without proper
       statutory authority and with no established
       end-date, after Congress’[s] repeated
       rejection of proposed legislation that would
       have accomplished a similar result. Such an
       open-ended circumvention of immigration
       laws was an unconstitutional exercise of
       authority by the Executive Branch.

(emphases added).

    These sentences unmistakably reflect the Attorney
General’s belief that DACA was illegal and therefore
beyond the power of DHS to institute or maintain. The letter
goes on to opine that “[b]ecause the DACA policy has the
same legal and constitutional defects that the courts
recognized as to DAPA [in the Texas litigation], it is likely
that potentially imminent litigation would yield similar
results with respect to DACA.” But in the context of the full
paragraph, the reference to “similar results” is best read not
as an independent reason for rescinding DACA, but as a
natural consequence of DACA’s supposed illegality—which
is the topic of the paragraph as a whole. In the words of
Judge Garaufis of the District Court for the Eastern District
of New York, that reference “is too thin a reed to bear the
weight of Defendants’ ‘litigation risk’ argument.” Batalla
Vidal v. Nielsen, 279 F. Supp. 3d 401, 429 (E.D.N.Y. 2018).

   In any event, the Attorney General’s letter is relevant
only to the extent it illuminates whether Acting Secretary
Duke—the official who actually rescinded the DACA
program—did so as an exercise of her discretion or because
she understood her hand to be forced by the law. In this
52      REGENTS OF THE UNIV. OF CAL. V. USDHS

connection, it is helpful to compare the operative language
used by Acting Secretary Duke to rescind DACA with that
used by her predecessor, Secretary John Kelly, to rescind
DAPA just months before.          In his June 15, 2017,
memorandum, Secretary Kelly wrote:

       After consulting with the Attorney General,
       and in the exercise of my discretion in
       establishing     national       immigration
       enforcement policies and priorities, I hereby
       rescind    the   November        20,     2014
       memorandum [that established DAPA].

(emphasis added). Placed alongside Acting Secretary
Duke’s language, the parallels—and the differences—are
stark. Acting Secretary Duke’s memorandum reads:

       In the exercise of my authority in establishing
       national immigration policies and priorities,
       except for the purposes explicitly identified
       below, I hereby rescind the June 15, 2012
       memorandum [that established DACA].

(emphasis added).

    The obvious similarities between the two passages
strongly suggest that Acting Secretary Duke modeled her
language after that of Secretary Kelly’s memo. And indeed,
we know that the Acting Secretary considered the Kelly
memorandum in reaching her decision, because the
government has told us so. See Petition for Writ of
Mandamus, In re United States, No. 17-72917 (9th Cir. Oct.
20, 2017) (stating that the government’s proffered
administrative record in this case, which includes the Kelly
memorandum, “consist[s] of the non-privileged materials
considered by the Acting Secretary in reaching her decision
          REGENTS OF THE UNIV. OF CAL. V. USDHS                    53

to rescind the DACA policy”); id. at 18 (taking the position
that only materials personally reviewed by the Acting
Secretary herself, not by subordinates, are “considered” by
the Secretary).

    Given that Acting Secretary Duke hewed so closely to
Secretary Kelly’s language in general, it is appropriate to
draw meaning from the one major difference between the
two sentences: Secretary Kelly exercised his “discretion” in
ending DAPA; Acting Secretary Duke merely exercised her
“authority.” Cf., e.g., Jama v. ICE, 543 U.S. 335, 357 (2005)
(“[W]hen the legislature uses certain language in one part of
the statute and different language in another, the court
assumes different meanings were intended.”). The point is
that with the example set by the Kelly memorandum in front
of her, Acting Secretary Duke clearly would have known
how to express that the rescission was a discretionary act—
if that were indeed the case. 17 Furthermore, the near-
verbatim language of the two rescission memoranda
suggests that the Acting Secretary adopted the majority of
Kelly’s wording, but actively rejected describing the DACA
rescission as an act of discretion. This difference in
language cuts strongly against any suggestion that the
rescission was discretionary.

    The government counters that the memorandum
“focused from beginning to end principally on litigation
concerns, not the legality of DACA per se.” But as the State
plaintiffs point out, the memorandum’s references to these

    17
       Secretary Kelly’s references to the factors he considered, which
included obviously discretionary considerations such as “our new
immigration enforcement priorities,” provided a further model for how
to describe a discretionary decision, which Acting Secretary Duke also
chose not to follow.
54       REGENTS OF THE UNIV. OF CAL. V. USDHS

supposed “litigation concerns” were limited to a simple
summary of the Texas litigation’s procedural history;
appeared only in the “Background” section of the
memorandum; and were not referenced in the Acting
Secretary’s statement of what she was “[t]aking into
consideration.” See also note 16, supra.

     The government also asserts that because the Acting
Secretary wrote that DACA “should” rather than must be
ended, she did not view herself as bound to act. But even on
its face, “should” is fully capable of expressing obligation or
necessity. See, e.g., Should, New Oxford American
Dictionary (3d ed. 2010) (“used to indicate obligation, duty,
or correctness”); cf. Should, Garner’s Dictionary of Legal
Usage (3d ed. 2011) (“should . . . is sometimes used to create
mandatory standards”). The Acting Secretary’s use of
“should” instead of “must” cannot overcome the absence of
any discussion of potential litigation or the “risks” attendant
to it from the rescission memorandum’s statement of
reasons, and the discrepancy between the rescission of
DAPA as an act of “discretion” and the rescission of DACA
as an act of “authority.”

    Finally, the government takes a quote from the Supreme
Court to the effect that courts should “uphold a decision of
less than ideal clarity if the agency’s path may reasonably be
discerned,” Bowman Transp., Inc. v. Ark.-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974), and contorts it into an
argument that the district court’s “narrow reading of the
Acting Secretary’s rationale is hardly the only one that ‘may
reasonably be discerned’ from the Acting Secretary’s
memorandum.” But Bowman is about finding a reviewable
rationale in an agency’s action versus finding no articulation
of that rationale. Bowman does not say—and it certainly
does not logically follow—that a court must ignore the most
        REGENTS OF THE UNIV. OF CAL. V. USDHS              55

natural reading of an agency’s statement of reasons just
because it may also be “reasonably susceptible” to a (less
compelling) reading that the government would prefer. The
government is in effect asking the court to defer to agency
counsel’s post-hoc rationalization, as long as there is some
reading of the rescission memorandum—never mind how
strained—that would support it. Bowman does not require
this incongruous result.

    We agree with the district court that the Acting Secretary
based the rescission of DACA solely on a belief that DACA
was beyond the authority of DHS. Under Montana Air and
Chaney’s footnote four, this conclusion brings the rescission
within the realm of agency actions reviewable under the
APA. Unless the INA itself deprives the courts of
jurisdiction over this case, we must proceed to evaluate the
merits of plaintiffs’ arbitrary-and-capricious claim.

B. Jurisdiction under the INA

    The government contends that the INA stripped the
district court of its jurisdiction in a provision that states:

       Except as provided in this section [which sets
       out avenues of review not applicable here]
       . . . no court shall have jurisdiction to hear
       any cause or claim by or on behalf of any
       alien arising from the decision or action by
       the [Secretary of Homeland Security] to
       commence proceedings, adjudicate cases, or
       execute removal orders against any alien
       under this chapter.

8 U.S.C. § 1252(g).
56       REGENTS OF THE UNIV. OF CAL. V. USDHS

    The Supreme Court has explicitly held that this section
“applies only to three discrete actions that the [Secretary]
may take: her ‘decision or action’ to ‘commence
proceedings, adjudicate cases, or execute removal orders.’”
AADC, 525 U.S. at 482 (emphasis in original). As the Court
put it, “[i]t is implausible that the mention of three discrete
events along the road to deportation was a shorthand way of
referring to all claims arising from deportation proceedings.
Not because Congress is too unpoetic to use synecdoche, but
because that literary device is incompatible with the need for
precision in legislative drafting.” Id.

     The government attempts to expand Section 1252(g) to
encompass this case in two ways. First, it points out that the
AADC Court read that provision as Congress’s effort to
shield executive decisions not to grant deferred action from
review outside the procedures prescribed by the INA. The
Court quoted a treatise describing the practice of deferred
action and the litigation that would result when the
government declined to grant deferred action: “Efforts to
challenge the refusal to exercise such discretion on behalf of
specific aliens sometimes have been favorably considered by
the courts . . . .” Id. at 484–85 (quoting 6 Charles Gordon et
al., Immigration Law and Procedure § 72.03[2][h] (1998)).
Having reviewed these developments, the Court concluded:
“Section 1252(g) seems clearly designed to give some
measure of protection to ‘no deferred action’ decisions and
similar discretionary determinations. . . .” Id. at 485.

    The government argues that AADC’s reasoning—and
therefore Section 1252(g)—applies to the rescission of
DACA, which is itself in some sense a “no deferred action”
decision. It seems quite clear, however, that AADC reads
Section 1252(g) as responding to litigation over individual
“no deferred action” decisions, rather than a programmatic
         REGENTS OF THE UNIV. OF CAL. V. USDHS              57

shift like the DACA rescission. For example, the treatise
passage AADC quotes to set the scene for Congress’s action
refers explicitly to “[e]fforts to challenge the refusal to
exercise [deferred action] on behalf of specific aliens. . . .”
Id. (emphasis added). And in any case, the holding of AADC
was explicit: “The provision applies only to [the] three
discrete actions” mentioned in the statute. Id. at 482.

    The government’s fallback argument is thus to cast the
rescission of DACA as an initial “action” in the agency’s
“commence[ment] [of] proceedings.” 8 U.S.C. § 1252(g).
But AADC specifically rejected a broad reading of the three
discrete actions listed in Section 1252(g). “[D]ecisions to
open an investigation, [or] to surveil the suspected violator”
are not included in Section 1252(g)’s jurisdictional bar,
AADC, 525 U.S. at 482, even though these actions are also
“part of the deportation process,” id., and could similarly be
construed as incremental steps toward an eventual
“commence[ment] [of] proceedings,” 8 U.S.C. § 1252(g).

     Indeed, in a case closely on point, our court rejected the
application of Section 1252(g) and allowed to proceed a
challenge to INS guidance narrowly interpreting the terms of
a “one-time legalization program” for undocumented
immigrants. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d
1139, 1141 (9th Cir. 2000). We noted that “[a]s interpreted
by the Supreme Court in [AADC], [Section 1252(g)] applies
only to the three specific discretionary actions mentioned in
its text, not to all claims relating in any way to deportation
proceedings,” and held that the challenge was not barred. Id.
at 1150. The panel did not appear concerned by the fact that
it was possible to conceptualize that policy choice by INS as
an ingredient in a subsequent decision to commence
proceedings against particular individuals.
58        REGENTS OF THE UNIV. OF CAL. V. USDHS

    The government cites no cases applying the Section
1252(g) bar to a programmatic policy decision about
deferred action; the two cases it does cite were challenges to
individual “no deferred action” decisions—that is, they fall
exactly within Section 1252(g) as interpreted by the Court in
AADC. See Vasquez v. Aviles, 639 F. App’x 898 (3d Cir.
2016); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999).
Especially in light of the “‘strong presumption in favor of
judicial review of administrative action’ governing the
construction of jurisdiction-stripping provisions of
IIRIRA,” 18 ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th
Cir. 2004) (quoting INS v. St. Cyr, 533 U.S. 289, 298
(2001)), we hold that Section 1252(g) does not deprive
courts of jurisdiction to review the DACA rescission order. 19

                                  IV.

    Having concluded that neither the APA nor the INA
precludes judicial review, we turn to the merits of the
preliminary injunction. The district court held that plaintiffs
satisfied the familiar four-factor preliminary injunction

    18
       Section 1252(g) is one such provision. See AADC, 525 U.S. at
475 (describing § 1252(g)’s passage as part of IIRIRA).

     19
       In its response and reply brief, the government appears to argue
that another provision of the INA, 8 U.S.C. § 1252(b)(9), also stripped
the district court of jurisdiction. Although ordinarily an argument not
raised in the opening brief would be waived, this argument is
jurisdictional so we must consider it. See, e.g., Embassy of the Arab
Republic of Egypt v. Lasheen, 603 F.3d 1166, 1171 n.3 (9th Cir. 2010)
(“[C]hallenges to subject matter jurisdiction cannot be waived[.]”). But
Section 1252(b)(9) does not bar jurisdiction here, because it “appl[ies]
only to those claims seeking judicial review of orders of removal.” Singh
v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (citing St. Cyr, 533 U.S.
at 313).
           REGENTS OF THE UNIV. OF CAL. V. USDHS                          59

standard 20 with respect to their claim under the APA that the
rescission of DACA was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” See
5 U.S.C. § 706(2)(A). The government takes issue with the
district court’s conclusion on only one of the preliminary
injunction factors: the likelihood of success on the merits.

      In an arbitrary-and-capricious challenge, “[i]t is well-
established that an agency’s action must be upheld, if at all,
on the basis articulated by the agency itself.” Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.,
463 U.S. 29, 50 (1983); see also, e.g., SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947) (Chenery II) (“[A] reviewing court
. . . must judge the propriety of [agency] action solely by the
grounds invoked by the agency.” (citing SEC v. Chenery
Corp., 318 U.S. 80 (1943) (Chenery I)).

    Similarly, it is black letter law that where an agency
purports to act solely on the basis that a certain result is
legally required, and that legal premise turns out to be
incorrect, the action must be set aside, regardless of whether
the action could have been justified as an exercise of
discretion. That principle goes back at least as far as the
Supreme Court’s seminal decision in Chenery I, in which the
Court stated:

         If [agency] action rests upon an
         administrative determination—an exercise of
         judgment in an area which Congress has
         entrusted to the agency—of course it must
    20
        “A plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
60      REGENTS OF THE UNIV. OF CAL. V. USDHS

       not be set aside because the reviewing court
       might have made a different determination
       were it empowered to do so. But if the action
       is based upon a determination of law as to
       which the reviewing authority of the courts
       does come into play, an order may not stand
       if the agency has misconceived the law.

Chenery I, 318 U.S. at 94 (emphasis added).

    This holding of Chenery I remains good law. See, e.g.,
United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017)
(“Where a statute grants an agency discretion but the agency
erroneously believes it is bound to a specific decision, we
can’t uphold the result as an exercise of the discretion that
the agency disavows.”); Safe Air for Everyone v. EPA,
488 F.3d 1088, 1101 (9th Cir. 2007) (setting aside agency
action that was justified on a “legally erroneous” basis, and
remanding for further consideration under other
justifications). As the D.C. Circuit flatly put it, “An agency
action, however permissible as an exercise of discretion,
cannot be sustained where it is based not on the agency’s
own judgment but on an erroneous view of the law.” Sea-
Land Serv., Inc. v. DOT, 137 F.3d 640, 646 (D.C. Cir. 1998)
(internal quotation marks omitted) (quoting Prill v. NLRB,
755 F.2d 941, 947 (D.C. Cir. 1985)).

    Thus, if the DACA rescission was based solely on an
erroneous legal premise, it must be set aside under 5 U.S.C.
§ 706(2)(A). We have already concluded, in our discussion
of reviewability, that the rescission was indeed premised on
          REGENTS OF THE UNIV. OF CAL. V. USDHS                     61

the belief that the DACA program was unlawful. We next
must decide whether that legal conclusion was correct. 21

    Attorney General Sessions’s September 4, 2017, letter
expresses several possible bases for the agency’s ultimate
conclusion that DACA was unlawful. First, the Attorney
General states that “DACA was effectuated by the previous
administration through executive action . . . after
Congress’[s] repeated rejection of proposed legislation that
would have accomplished a similar result.” But our court
has already explained that “Congress’s failure to pass the
[DREAM] Act does not signal the illegitimacy of the DACA
program,” partly because “the DREAM Act and the DACA
program are not interchangeable policies because they
provide different forms of relief”: the DREAM Act would
have provided a path to lawful permanent resident status,
while DACA simply defers removal. Brewer II, 855 F.3d at
976 n.10; see Motomura, supra, at 175 (“DACA is not the
DREAM Act; as an interim executive measure, it is limited
in duration and provides no durable immigration status.”)
(footnote omitted); see also, e.g., DREAM Act of 2011, S.
952, 112th Cong. (2011). Moreover, there is nothing
inherently problematic about an agency addressing a
problem for which Congress has been unable to pass a
legislative fix, so long as the particular action taken is
properly within the agency’s power. This argument
therefore provides no independent reason to think that
DACA is unlawful.

    21
       The government does not argue that its conclusion is entitled to
Chevron deference, likely because “[d]eference to an agency’s
interpretation of a statute is not appropriate when the agency wrongly
‘believes that interpretation is compelled by Congress.’” Gila River
Indian Cmty. v. United States, 729 F.3d 1139, 1149 (9th Cir. 2013)
(quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004)).
62       REGENTS OF THE UNIV. OF CAL. V. USDHS

     The Attorney General’s primary bases for concluding
that DACA was illegal were that the program was
“effectuated . . . without proper statutory authority” and that
it amounted to “an unconstitutional exercise of authority.”
More specifically, the Attorney General asserted that “the
DACA policy has the same legal and constitutional defects
that the courts recognized as to DAPA” in the Texas
litigation.

    The claim of “constitutional defects” is a puzzling one
because as all the parties recognize, no court has ever held
that DAPA is unconstitutional. The Fifth Circuit and district
court in Texas explicitly declined to address the
constitutional issue. See Texas, 809 F.3d at 154 (“We decide
this appeal . . . without resolving the constitutional claim.”);
Texas, 86 F. Supp. 3d at 677 (“[T]he Court is specifically not
addressing Plaintiffs’ likelihood of success on . . . their
constitutional claims . . . .”). Indeed, the government makes
no attempt in this appeal to defend the Attorney General’s
assertion that the DACA program is unconstitutional. We
therefore do not address it further.

    With respect to DACA’s alleged “legal . . . defects,” the
district court explained in great detail the long history of
deferred action in immigration enforcement, including in the
form of broad programs; the fact that the Supreme Court and
Congress have both acknowledged deferred action as a
feature of the immigration system; and the specific statutory
responsibility of the Secretary of Homeland Security for
“[e]stablishing national immigration enforcement policies
and priorities,” 6 U.S.C. § 202(5). The government does not
contest any of these propositions, which themselves go a
long way toward establishing DACA’s legality. Instead, the
government argues that the Fifth Circuit’s reasons for
         REGENTS OF THE UNIV. OF CAL. V. USDHS              63

striking down the related DAPA policy would also apply to
DACA.

   The Fifth Circuit concluded that DAPA was unlawful on
two grounds: first, that DAPA was in fact a legislative rule
and therefore should have been promulgated through notice-
and-comment rulemaking; and second, that DAPA was
substantively inconsistent with the INA. See Texas,
809 F.3d at 171–78, 178–86.

    With respect to the first holding, notice-and-comment
procedures are not required where the agency
pronouncement in question is a “general statement[] of
policy.” 5 U.S.C. § 553(b)(3)(A). “The critical factor to
determine whether a directive announcing a new policy
constitutes a rule or a general statement of policy is the
extent to which the challenged [directive] leaves the agency,
or its implementing official, free to exercise discretion to
follow, or not to follow, the [announced] policy in an
individual case.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006,
1013 (9th Cir. 1987) (alterations in original) (internal
quotation marks omitted).

    On its face, DACA obviously allows (and indeed
requires) DHS officials to exercise discretion in making
deferred action decisions as to individual cases: Secretary
Napolitano’s memorandum announcing DACA specifically
states that “requests for relief pursuant to this memorandum
are to be decided on a case by case basis.” The Fifth Circuit
in Texas held that DAPA was a substantive rule
notwithstanding similar discretionary language, based
primarily on statistics regarding the approval rates of DACA
applications. The court read those statistics as revealing that
DACA was discretionary in name only—that is, that DHS
personnel had no discretion to deny deferred action if the
DACA criteria were met. Texas, 809 F.3d at 172–73.
64        REGENTS OF THE UNIV. OF CAL. V. USDHS

    But as the dissenting judge in Texas pointed out,
DACA’s (then) 5% denial rate—which did not include
applications rejected for administrative deficiencies—is
consistent with a discretionary program given that applicants
self-select: “It should be expected that only those highly
likely to receive deferred action will apply; otherwise,
applicants would risk revealing their immigration status and
other identifying information to authorities, thereby risking
removal (and the loss of a sizeable fee).” Texas, 809 F.3d at
210 (King, J., dissenting).

    Moreover, the denial rate has risen as the DACA
program has matured. DHS statistics included in the record
reveal that in fiscal year 2016, for example, the agency
approved 52,882 initial DACA applications and denied
11,445; that is, 17.8% of the applications acted upon were
denied. 22 As Judge King concluded, “Neither of these
numbers suggests an agency on autopilot.” Texas, 809 F.3d
at 210 n.44 (King, J., dissenting); see also Arpaio v. Obama,
27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014) (noting that
these same statistics “reflect that . . . case-by-case review is
in operation”). 23 In light of these differences, we do not

     22
       U.S. Citizenship & Immigration Services, Number of Form I-
821D, Consideration of Deferred Action for Childhood Arrivals, by
Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year
2012–2017 (March 31, 2017). The number of initial applications is the
relevant metric because renewal applications are by definition limited to
the pool of those already approved for DACA at least once. Therefore,
one would expect an even lower denial rate for renewals.

     23
        Judge King’s dissent also makes the critical observation that,
according to the declarations filed in that case, the reason DHS could not
point to specific instances in which DACA applicants met the program
criteria but were denied as a matter of discretion was that DHS did not
have the ability to track and sort the reasons for DACA denials. Texas,
809 F.3d at 211 (King, J., dissenting).
         REGENTS OF THE UNIV. OF CAL. V. USDHS               65

agree that DACA is a legislative rule that would require
notice-and-comment rulemaking.

     As to the substantive holding in Texas, the Fifth Circuit
concluded that DAPA conflicted with the INA largely for a
reason that is inapplicable to DACA. Specifically, the Fifth
Circuit reasoned that the INA provides “an intricate process
for illegal aliens to derive a lawful immigration classification
from their children’s immigration status” but that “DAPA
would allow illegal aliens to receive the benefits of lawful
presence solely on account of their children’s immigration
status without complying with any of the requirements . . .
that Congress has deliberately imposed.” Texas, 809 F.3d at
179–80. As the district court in this case noted, there is no
analogous provision in the INA defining how immigration
status may be derived by undocumented persons who arrived
in the United States as children. One of the major problems
the Fifth Circuit identified with DAPA is therefore not
present here.

    In resisting this conclusion, the government flips the
Fifth Circuit’s reasoning on its head, arguing that “[i]nsofar
as the creation of pathways to lawful presence was relevant,
the fact that Congress had legislated only for certain
individuals similarly situated to DAPA beneficiaries—and
not DACA recipients—would make DACA more
inconsistent with the INA than DAPA.” To the extent the
government meant to draw on the Texas court’s analysis, it
gets it exactly backwards: the whole thrust of the Fifth
Circuit’s reasoning on this point was that DHS was without
authority because “Congress has ‘directly addressed the
precise question at issue.’” Texas, 809 F.3d at 186 (quoting
Mayo Found. for Med. Educ. & Research v. United States,
562 U.S. 44, 52 (2011)). There is no argument that Congress
has similarly occupied the field with respect to DACA; as
66       REGENTS OF THE UNIV. OF CAL. V. USDHS

the Attorney General himself noted, Congress has repeatedly
rejected Dreamer legislation.

      The second major element of the Fifth Circuit’s analysis
on the substantive issues was that the INA itself “prescribes
. . . which classes of aliens can achieve deferred action and
eligibility for work authorization.” Texas, 809 F.3d at 186.
The court drew the implication that the statute must therefore
preclude the Executive Branch from granting these benefits
to other classes. Id. (pairing this notion with the pathway-
to-lawful-presence argument as the keys to its conclusion).

    But “[t]he force of any negative implication . . . depends
on context.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381
(2013). Indeed, “[w]e do not read the enumeration of one
case to exclude another unless it is fair to suppose that
Congress considered the unnamed possibility and meant to
say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149,
168 (2003). Here, the express grants of deferred action cited
by the Fifth Circuit were not passed together as part of the
original INA; rather, they were added to the statute books
piecemeal over time by Congress. See Violence Against
Women Act of 2000, Pub. L. No. 106-386, div. B, sec. 1503,
§ 1154(a)(1)(D)(i), 114 Stat. 1491 (codified at 8 U.S.C.
§ 1154(a)(1)(D)(i)) (specifying deferred action for certain
VAWA self-petitioners); USA PATRIOT Act of 2001, Pub.
L. No. 107-56, § 423(b), 115 Stat. 272, 361 (same, for family
members of lawful permanent residents killed by terrorism);
National Defense Authorization Act for Fiscal Year 2004,
Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694–
95 (same, for relatives of noncitizens killed in combat and
posthumously granted citizenship).

    Given this context, we find it improbable that Congress
“considered the . . . possibility” of all other potential uses for
deferred action “and meant to say no” to any other
         REGENTS OF THE UNIV. OF CAL. V. USDHS              67

application of that tool by the immigration agency.
Barnhart, 537 U.S. at 168. We think the much more
reasonable conclusion is that in passing its seriatim pieces of
legislation, instructing that this and that “narrow class[]” of
noncitizens should be eligible for deferred action, Texas,
809 F.3d at 179, Congress meant to say nothing at all about
the underlying power of the Executive Branch to grant the
same remedy to others. We do not read an “and no one else”
clause into each of Congress’s individual express grants of
deferred action.

    Another element in the Fifth Circuit’s analysis was that
“DAPA would make 4.3 million otherwise removable aliens
eligible for lawful presence, employment authorization, and
associated benefits, and ‘we must be guided to a degree by
common sense as to the manner in which Congress is likely
to delegate a policy decision of such economic and political
magnitude to an administrative agency.’” Id. at 181 (quoting
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000)). DACA, on the other hand, had 689,800
enrollees as of September 2017. The government asserts that
this difference in size is “legally immaterial,” but that
response is unconvincing. If the point is that the “economic
and political magnitude” of allowing 4.3 million people to
remain in the country and obtain work authorization is such
that Congress would have spoken to it directly, then surely
it makes a difference that one policy has less than one-sixth
the “magnitude” of the other. Id. As the district court
laconically put it, “there is a difference between 4.3 million
and 689,800.”

    Finally, the government finds “an insurmountable
obstacle to plaintiffs’ position” in that “the district court’s
injunction affirmed by the Fifth Circuit covered both DAPA
and expanded DACA.” It is true that the Texas court also
68       REGENTS OF THE UNIV. OF CAL. V. USDHS

enjoined the expansions of DACA that were announced in
the same memorandum as the DAPA program. See Texas,
809 F.3d at 147 n.11 (“The district court enjoined
implementation of the following three DACA expansions,
and they are included in the term ‘DAPA’ in this opinion
. . . .”). But no analysis was devoted to those provisions by
either the Fifth Circuit or the Texas district court, and one of
the keys to the Fifth Circuit’s reasoning—that Congress had
supposedly occupied the field with respect to obtaining
immigration benefits through one’s children—does not
apply to either the original DACA program or its expansions.
Under these circumstances, we do not find the Texas courts’
treatment of the DACA expansions to be strong persuasive
authority, much less an “insurmountable obstacle.” Cf.
Bryan A. Garner et al., The Law of Judicial Precedent 170
(2016) (“An authority derives its persuasive power from its
ability to convince others to go along with it.”).

    In sum, the reality is (and always has been) that the
executive agencies charged with immigration enforcement
do not have the resources required to deport every single
person present in this country without authorization.
Compare Bernsen Memorandum, supra, at 1 (stating, in
1976, that “[t]here simply are not enough resources to
enforce all of the rules and regulations presently on the
books”), with Memorandum from John Morton, Assistant
Secretary, DHS, Civil Immigration Enforcement: Priorities
for the Apprehension, Detention, and Removal of Aliens, at
1 (June 30, 2010) (estimating that ICE has enough resources
to deport only 4% of the undocumented population in any
given year, and concluding that “ICE must prioritize the use
of its . . . removal resources to ensure the removals the
agency does conduct promote the agency’s highest
enforcement priorities”) and Motomura, supra, at 26 (“The
letter of the law creates a large removable population, but
         REGENTS OF THE UNIV. OF CAL. V. USDHS              69

whether an individual is actually targeted for removal has
long depended on government discretion and bad luck.”
(footnote omitted)). Recognizing this state of affairs,
Congress has explicitly charged the Secretary of Homeland
Security with “[e]stablishing national immigration
enforcement policies and priorities.” 6 U.S.C. § 202(5).

    It is therefore no surprise that deferred action has been a
feature of our immigration system—albeit one of executive
invention—for decades; has been employed categorically on
numerous occasions; and has been recognized as a practical
reality by both Congress and the courts. See, e.g., Brewer II,
855 F.3d at 967 (“[I]t is well settled that the Secretary [of
Homeland Security] can exercise deferred action” as part of
her statutory authority “to administer and enforce all laws
relating to immigration and naturalization.”). In a world
where the government can remove only a small percentage
of the undocumented noncitizens present in this country in
any year, deferred action programs like DACA enable DHS
to devote much-needed resources to enforcement priorities
such as threats to national security, rather than blameless and
economically productive young people with clean criminal
records.

    We therefore conclude that DACA was a permissible
exercise of executive discretion, notwithstanding the Fifth
Circuit’s conclusion that the related DAPA program
exceeded DHS’s statutory authority. DACA is being
implemented in a manner that reflects discretionary, case-
by-case review, and at least one of the Fifth Circuit’s key
rationales in striking down DAPA is inapplicable with
respect to DACA. With respect for our sister circuit, we find
the analysis that seemingly compelled the result in Texas
entirely inapposite. And because the Acting Secretary was
therefore incorrect in her belief that DACA was illegal and
70         REGENTS OF THE UNIV. OF CAL. V. USDHS

had to be rescinded, plaintiffs are likely to succeed in
demonstrating that the rescission must be set aside. Chenery
I, 318 U.S. at 94; Safe Air for Everyone, 488 F.3d at 1101–
02.

    To be clear: we do not hold that DACA could not be
rescinded as an exercise of Executive Branch discretion. We
hold only that here, where the Executive did not make a
discretionary choice to end DACA—but rather acted based
on an erroneous view of what the law required—the
rescission was arbitrary and capricious under settled law.
The government is, as always, free to reexamine its policy
choices, so long as doing so does not violate an injunction or
any freestanding statutory or constitutional protection. 24

                                     V.

   Having concluded that the district court was correct in its
APA merits holding, we now turn to the question of the
appropriate remedy.    The district court preliminarily
     24
        The government has submitted a letter pursuant to Federal Rule
of Appellate Procedure 28(j), informing us that the current Secretary of
Homeland Security, Kirstjen Nielsen, issued a new memorandum
regarding the DACA rescission on June 22, 2018. In the memorandum,
Secretary Nielsen “provide[d] additional explanation of the basis for the
DACA rescission,” in response to an order filed in a parallel lawsuit.
The government’s letter does not argue that the Nielsen memorandum
represents fresh agency action that could possibly moot this appeal. We
therefore leave it to the district court in the first instance to determine the
admissibility of Secretary Nielsen’s letter given that it cannot possibly
be a part of the administrative record in this case, and its impact, if any,
on this case. And to the extent the Nielsen memorandum is offered as
an additional justification of the original DACA rescission, we do not
consider it in our review of Acting Secretary Duke’s decision because it
is well-settled that “we will not allow the agency to supply post-hoc
rationalizations for its actions . . . .” San Luis & Delta-Mendota Water
Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014).
         REGENTS OF THE UNIV. OF CAL. V. USDHS               71

enjoined the rescission of DACA with respect to existing
beneficiaries on a nationwide basis. The government asserts
that this was error, and that a proper injunction would be
narrower.

    The general rule regarding the scope of preliminary
injunctive relief is that it “should be no more burdensome to
the defendant than necessary to provide complete relief to
the plaintiffs before the court.” L.A. Haven Hospice, Inc. v.
Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (internal citation
omitted). But “[t]here is no general requirement that an
injunction affect only the parties in the suit.” Bresgal v.
Brock, 843 F.2d 1163, 1169 (9th Cir. 1987); see also id. at
1170–71 (“[A]n injunction is not necessarily made over-
broad by extending benefit or protection to persons other
than prevailing parties in the lawsuit—even if it is not a class
action—if such breadth is necessary to give prevailing
parties the relief to which they are entitled.”) (emphasis in
original).

    It is also important to note that the claim underlying the
injunction here is an arbitrary-and-capricious challenge
under the APA. In this context, “[w]hen a reviewing court
determines that agency regulations are unlawful, the
ordinary result is that the rules are vacated—not that their
application to the individual petitioners is proscribed.” Nat’l
Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399,
1409 (D.C. Cir. 1998) (internal citation omitted). As Justice
Blackmun explained while “writing in dissent but apparently
expressing the view of all nine Justices on this question,” id.:

       The Administrative Procedure Act permits
       suit to be brought by any person “adversely
       affected or aggrieved by agency action.” In
       some cases the “agency action” will consist
       of a rule of broad applicability; and if the
72       REGENTS OF THE UNIV. OF CAL. V. USDHS

       plaintiff prevails, the result is that the rule is
       invalidated, not simply that the court forbids
       its application to a particular individual.
       Under these circumstances a single plaintiff,
       so long as he is injured by the rule, may
       obtain “programmatic” relief that affects the
       rights of parties not before the court.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990)
(Blackmun, J., dissenting) (citation omitted).

    A final principle is also relevant: the need for uniformity
in immigration policy. See Hawaii v. Trump, 878 F.3d 662,
701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392
(2018) (“Because this case implicates immigration policy, a
nationwide injunction was necessary to give Plaintiffs a full
expression of their rights.”). As the Fifth Circuit stated when
it affirmed the nationwide injunction against DAPA, “the
Constitution requires an uniform Rule of Naturalization;
Congress has instructed that the immigration laws of the
United States should be enforced vigorously and uniformly;
and the Supreme Court has described immigration policy as
a comprehensive and unified system.” Texas, 809 F.3d at
187–88 (emphases in original) (citations and internal
quotation marks omitted). Allowing uneven application of
nationwide immigration policy flies in the face of these
requirements.

    In its briefing, the government fails to explain how the
district court could have crafted a narrower injunction that
would provide complete relief to the plaintiffs, including the
entity plaintiffs. Cf. Washington v. Trump, 847 F.3d 1151,
1167 (9th Cir. 2017) (“[T]he Government has not proposed
a workable alternative form of the TRO . . . that would
protect the proprietary interests of the States at issue here
          REGENTS OF THE UNIV. OF CAL. V. USDHS                       73

while nevertheless applying only within the States’
borders.”). Nor does it provide compelling reasons to
deviate from the normal rule in APA cases, or to disregard
the need for uniformity in national immigration policy. The
one argument it does offer on this latter point—that
“[d]eferred action is itself a departure from vigorous and
uniform enforcement of the immigration laws,” and that
“enjoining the rescission of DACA on a nationwide basis . . .
increases rather than lessens that departure”—is a red
herring. DACA is national immigration policy, and an
injunction that applies that policy to some individuals while
rescinding it as to others is inimical to the principle of
uniformity.

    We therefore conclude that the district court did not
abuse its discretion in issuing a nationwide injunction. Such
relief is commonplace in APA cases, promotes uniformity in
immigration enforcement, and is necessary to provide the
plaintiffs here with complete redress.

                                  VI.

    We turn next to the district court’s treatment of the
government’s motion to dismiss for failure to state a claim.
The government moved to dismiss all of plaintiffs’ claims;
the district court dismissed some claims and denied the
government’s motion as to others. We take each claim in
turn. 25




    25
       Plaintiffs do not challenge the district court’s dismissal of their
equitable estoppel claim.
74      REGENTS OF THE UNIV. OF CAL. V. USDHS

A. APA: Arbitrary-and-Capricious

    For the reasons stated above in discussing plaintiffs’
likelihood of success on the merits, the district court was
correct to deny the government’s motion to dismiss
plaintiffs’ claim that the DACA rescission was arbitrary and
capricious under the APA. See 5 U.S.C. § 706(2)(A).

B. APA: Notice-and-Comment

    Plaintiffs also assert that the rescission of DACA is in
fact a substantive rule under the APA, and that it therefore
could not be validly accomplished without notice-and-
comment procedures.

     As touched on above with respect to DACA itself, an
agency pronouncement is excluded from the APA’s
requirement of notice-and-comment procedures if it
constitutes a “general statement[] of policy.” 5 U.S.C.
§ 553(b)(3)(A). General statements of policy are those that
“advise the public prospectively of the manner in which the
agency proposes to exercise a discretionary power.” Mada-
Luna, 813 F.2d at 1012–13 (quoting Attorney General’s
Manual on the Administrative Procedure Act 30 n.3 (1947)).
“To qualify as a general statement of policy . . . a directive
must not establish a binding norm and must leave agency
officials free to consider the individual facts in the various
cases that arise and to exercise discretion.” Id. at 1015
(internal quotation marks omitted); see also id. at 1013 (“The
critical factor to determine whether a directive announcing a
new policy constitutes a rule or a general statement of policy
is the extent to which the challenged [directive] leaves the
agency, or its implementing official, free to exercise
discretion to follow, or not to follow, the [announced] policy
in an individual case.” (alterations in original) (internal
quotation marks omitted)).
         REGENTS OF THE UNIV. OF CAL. V. USDHS               75

    The district court held that because DACA itself was a
general statement of policy that did not require notice and
comment, it could also be rescinded without those
procedures. This proposition finds support in Mada-Luna,
in which “we conclude[d] that [a deferred-action Operating
Instruction] constituted a general statement of policy, and
thus could be validly repealed and superseded without
notice-and-comment proceedings.” Id. at 1017. Plaintiffs
contest this conclusion, arguing that the DACA rescission
was a binding rule, even though DACA’s adoption was a
general statement of policy. They provide two bases for this
assertion.

    First, plaintiffs argue that the rescission is binding
because it requires DHS officials to reject new DACA
applications and (after a certain date) renewal applications.
It is true that Acting Secretary Duke’s rescission
memorandum makes rejections of DACA applications
mandatory. But the relevant question under the rescission
memorandum is not whether DHS officials retained
discretion to accept applications for a program that no longer
existed; instead, the question is whether DHS officials
retained discretion to grant deferred action and collateral
benefits outside of the (now-cancelled) DACA program.

    For its part, the government asserts that the rescission
memorandum made clear that, despite the rescission, “future
deferred action requests will be ‘adjudicat[ed] . . . on an
individual, case-by-case basis.’” Mildly put, this assertion
mischaracterizes the memorandum. The quoted language
refers to the treatment of only (a) initial applications pending
on the date of the rescission, and (b) renewal applications
filed within the one-month wind-down period. It does not
refer to how future requests for deferred action outside the
DACA program would be handled. Still, the rescission
76        REGENTS OF THE UNIV. OF CAL. V. USDHS

memorandum also did not forbid the agency from granting
such requests, and it acknowledged the background principle
of deferred action as “an act of prosecutorial discretion
meant to be applied only on an individualized case-by-case
basis.” And the memorandum closed by stating that “no
limitations are placed by this guidance on the otherwise
lawful enforcement or litigation prerogatives of DHS”—
presumably including granting deferred action on a case-by-
case basis to some people who would have been eligible for
DACA.

    If allowed to go into effect, the rescission of DACA
would undoubtedly result in the loss of deferred action for
the vast majority of the 689,800 people who rely on the
program. But the rescission memorandum does not mandate
that result because it leaves in place the background
principle that deferred action is available on a case-by-case
basis. 26 Plaintiffs’ primary argument against this conclusion
is a citation to United States ex rel. Parco v. Morris, 426 F.
Supp. 976 (E.D. Pa. 1977), which is said to be “the only other
decision to address an Executive Branch decision to
terminate a deferred-action program without undergoing
notice-and-comment rulemaking.” But as the district court
noted, the key factor in that case was the contention that
under the policy at issue, “‘discretion’ was exercised
favorably in all cases of a certain kind and then, after repeal
of the regulation, unfavorably in each such case.” Parco,

     26
       The Regents argue that “the agency’s discretion to grant deferred
action on the basis of the DACA criteria has been eliminated.” This is
not quite right either. DHS’s authority to grant deferred action under the
DACA program has been eliminated, but the DACA criteria themselves
are some of those that have traditionally guided immigration
enforcement discretion. See Wadhia, supra, at 57 (“DHS used traditional
humanitarian factors to outline the parameters for the DACA program,
such as tender age and longtime residence in the United States.”).
         REGENTS OF THE UNIV. OF CAL. V. USDHS               77

426 F. Supp. at 984. DACA, by contrast, explicitly
contemplated case-by-case discretion, and its rescission
appears to have left in place background principles of
prosecutorial discretion.

    Plaintiffs also argue that the DACA rescission is not a
general policy statement because it is binding as a legal
interpretation that a DACA-like program would be illegal.
But again, this argument answers the wrong question. The
Acting Secretary’s legal conclusion that a DACA-like
program is unlawful does not constrain the discretion of line-
level DHS employees to grant deferred action on a case-by-
case basis, and those employees lack authority to institute
such an agency-wide program in the first place. And
plaintiffs do not point to any reason why this Acting
Secretary’s legal conclusion about DACA would bind
subsequent Secretaries if they were to disagree with its
reasoning—just as Acting Secretary Duke reversed course
from previous Secretaries who concluded DACA was legal.
This is not a “new ‘binding rule of substantive law,’” Mada-
Luna, 813 F.2d at 1014, affecting the rights of the people and
entities regulated by the agency; it is an interpretation of the
agency’s own power, and plaintiffs do not explain why it
should be read as binding future DHS Secretaries. The
district court correctly dismissed plaintiffs’ notice-and-
comment claims.

C. Due Process: Deferred Action

    The Garcia plaintiffs—individual DACA recipients—
have brought a substantive due process claim alleging that
the rescission deprived them of protected interests in their
DACA designation, including the renewal of their benefits.
The district court dismissed this claim, holding that there is
no protected entitlement in either the initial grant of deferred
action under DACA or the renewal of benefits for existing
78       REGENTS OF THE UNIV. OF CAL. V. USDHS

DACA enrollees. On appeal, the Garcia plaintiffs challenge
this ruling only as it applies to the renewal of DACA
benefits, not as to the initial grant.

      “A threshold requirement to a substantive or procedural
due process claim is the plaintiff’s showing of a liberty or
property interest protected by the Constitution.”
Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56,
62 (9th Cir. 1994). It is possible to have a property interest
in a government benefit, but “a person clearly must have
more than an abstract need or desire for [the benefit]. He
must have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it.” Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).
Although “a benefit is not a protected entitlement if
government officials may grant or deny it in their
discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748,
756 (2005), a legitimate claim of entitlement may exist
where there are “rules or mutually explicit understandings
that support [a plaintiff’s] claim of entitlement to the benefit
. . . .” Perry v. Sindermann, 408 U.S. 593, 601 (1972); see
also, e.g., Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th
Cir. 2011). The dispute here focuses on whether such
“mutually explicit understandings” existed between the
government and DACA recipients with respect to the
renewal of DACA benefits.

    The Garcia plaintiffs assert that they and the government
“‘mutually’ understood that DACA recipients would be able
to renew their benefits and protection on an ongoing basis so
long as they fulfilled the program’s criteria.” But this
argument is undercut by the DACA FAQs published by
DHS, which explicitly state that “USCIS retains the ultimate
discretion to determine whether deferred action is
appropriate in any given case even if the [renewal]
          REGENTS OF THE UNIV. OF CAL. V. USDHS                      79

guidelines are met.” The FAQs also state that any
individual’s “deferred action may be terminated at any time,
with or without a Notice of Intent to Terminate, at DHS’s
discretion,”    and    Secretary    Napolitano’s     DACA
memorandum claims that it “confers no substantive right,
immigration status or pathway to citizenship.” Whether or
not these provisions are legally operative, they do not
indicate that the government shared plaintiffs’ expectation
of presumptive renewal.

    Attempting to overcome this facially discretionary
language, plaintiffs emphasize several factors. First, they
say, the very nature of the DACA project was such that
presumptive renewal was required to encourage people to
participate; a two-year term with no presumption of renewal
would not have been attractive enough to outweigh the risks
to the applicants. Moreover, Secretary Napolitano’s DACA
memorandum itself states that grants of deferred action
under DACA will be “subject to renewal,” and the actual
criteria for renewal were “nondiscretionary” in nature. 27
Finally, the plaintiffs point to a more than 99% approval rate
for adjudicated DACA renewal applications. This, they
assert, is powerful evidence of a mutual understanding of
presumptive renewal.



     27
        DHS’s DACA FAQs state that “[y]ou may be considered for
renewal of DACA if you met the guidelines for consideration of Initial
DACA (see above) AND you: [1] Did not depart the United States on or
after Aug. 15, 2012, without advance parole; [2] Have continuously
resided in the United States since you submitted your most recent request
for DACA that was approved up to the present time; and [3] Have not
been convicted of a felony, a significant misdemeanor, or three or more
misdemeanors, and do not otherwise pose a threat to national security or
public safety.”
80      REGENTS OF THE UNIV. OF CAL. V. USDHS

    All these points might have revealed a question of fact as
to whether a mutually explicit understanding of presumptive
renewal existed—thereby avoiding dismissal on the
pleadings—if plaintiffs were bringing a claim that, for
example, their individual DACA renewals were denied for
no good reason. But it is hard to see how an expectation of
renewal within the confines of the existing DACA policy
could have created a mutually explicit understanding that the
DACA program itself would not be terminated wholesale.
That is, a 99% renewal rate under DACA provides no
evidence that the government shared an understanding that
the DACA program would continue existing indefinitely to
provide such renewals. None of plaintiffs’ cited authorities
appear to address this kind of claim.

    While we may agree with much of what plaintiffs say
about the cruelty of ending a program upon which so many
have come to rely, we do not believe they have plausibly
alleged a “mutually explicit understanding” that DACA—
created by executive action in a politically polarized policy
area and explicitly couched in discretionary language—
would exist indefinitely, including through a change in
presidential administrations. See Gerhart, 637 F.3d at 1020
(“A person’s belief of entitlement to a government benefit,
no matter how sincerely or reasonably held, does not create
a property right if that belief is not mutually held by the
government.”). On that basis, we affirm the district court’s
dismissal.

D. Due Process: Information-Sharing

    Several of the complaints allege a different due process
theory: DACA recipients had a protected interest based on
the government’s representations that the personal
information they submitted with their applications would not
be used for enforcement purposes, and the government
        REGENTS OF THE UNIV. OF CAL. V. USDHS              81

violated this interest by changing its policy to allow such
use. The district court held that the plaintiffs had plausibly
alleged facts that state a claim under this theory.

    As with their other due process claim, the question
whether DACA recipients enjoy a protected due process
right protecting them from having the government use their
information against them for enforcement purposes turns on
the existence of a “mutually explicit understanding[]” on that
point between the government and DACA recipients. Perry,
408 U.S. at 601; see also Gerhart, 637 F.3d at 1020. The
DACA FAQs published by DHS state the following
information-use policy:

       Information provided in this request is
       protected from disclosure to ICE and CBP for
       the purpose of immigration enforcement
       proceedings unless the requestor meets the
       criteria for the issuance of a Notice to Appear
       or a referral to ICE under the criteria set forth
       in USCIS’ Notice to Appear guidance
       (www.uscis.gov/NTA). Individuals whose
       cases are deferred pursuant to DACA will not
       be referred to ICE. The information may be
       shared with national security and law
       enforcement agencies, including ICE and
       CBP, for purposes other than removal,
       including for assistance in the consideration
       of DACA, to identify or prevent fraudulent
       claims, for national security purposes, or for
       the investigation or prosecution of a criminal
       offense. The above information sharing
       policy covers family members and guardians,
       in addition to the requestor. This policy,
       which may be modified, superseded, or
82       REGENTS OF THE UNIV. OF CAL. V. USDHS

       rescinded at any time without notice, is not
       intended to, does not, and may not be relied
       upon to create any right or benefit,
       substantive or procedural, enforceable by law
       by any party in any administrative, civil, or
       criminal matter.

(emphasis added). The statement that applicant information
“is protected from disclosure” to the enforcement arms of
DHS is a strong commitment, and plaintiffs plausibly allege
that DACA recipients reasonably relied on it.

    The government of course points to the express caveat
that the information-sharing policy “may be modified,
superseded or rescinded at any time.” But as the district
court held, this qualifier is ambiguous as to whether it allows
the government to change its policy only prospectively, or
also with respect to information already received—and this
ambiguity presents a fact question not amenable to
resolution on the pleadings. Plaintiffs’ interpretation that a
policy change would only apply prospectively is a plausible
one, given that the policy is written in terms of what will
happen to “[i]nformation provided in this request,” rather
than DACA-derived information generally. (emphasis
added). It is at least reasonable to think that a change in the
policy would apply only to those applications submitted after
that change takes effect. And while the government also
relies on the language stating that the policy does not create
enforceable rights, such a disclaimer by an agency about
what its statements do and do not constitute as a legal matter
are not dispositive. See, e.g., Appalachian Power Co. v.
EPA, 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (declining to
give legal effect to agency statement that its guidance did
“not represent final Agency action, and cannot be relied
upon to create any rights . . . .”). Plaintiffs have plausibly
         REGENTS OF THE UNIV. OF CAL. V. USDHS              83

alleged a mutually explicit understanding that DACA
applicants’ information would be protected from disclosure.

    The government argues in the alternative that plaintiffs
have failed to plausibly allege that DHS actually changed its
policy. Plaintiffs’ allegations rest on a set of FAQs about the
DACA rescission that DHS published the same day it issued
the rescission memorandum, September 5, 2017. In those
rescission FAQs, the previous language stating that personal
information “is protected from disclosure” has been replaced
with the following:

       Information provided to USCIS in DACA
       requests will not be proactively provided to
       ICE and CBP for the purpose of immigration
       enforcement proceedings, unless the
       requestor meets the criteria for the issuance
       of a Notice to Appear or a referral to ICE
       under the criteria set forth in USCIS’ Notice
       to Appear guidance (www.uscis.gov/NTA).

(emphasis added).

    The government’s first response—that the differing
language in the two FAQs does not actually reflect a
difference in policy—is hard to swallow. It does not take
much parsing of the text to see the significant difference
between “protect[ing]” something from “disclosure” on the
one hand, and merely declining to “proactively provide[]” it
on the other. This is especially so when the entities in
question (and to which USCIS presumably would now
provide information reactively) are fellow components of
the same umbrella agency.
84      REGENTS OF THE UNIV. OF CAL. V. USDHS

    Changing gears, the government also points to yet a third
set of FAQs, published months after the rescission and not
part of the record in this case, which state:

       Information provided to USCIS for the
       DACA process will not make you an
       immigration priority for that reason alone.
       That information will only be proactively
       provided to ICE or CBP if the requestor
       meets the criteria for the issuance of a Notice
       To Appear or a referral to ICE under the
       criteria set forth in USCIS’ Notice to Appear
       guidance       (www.uscis.gov/NTA).       This
       information-sharing policy has not changed
       in any way since it was first announced,
       including as a result of the Sept. 5, 2017
       memo starting a wind-down of the DACA
       policy.

USCIS, Guidance on Rejected DACA Requests: Frequently
Asked Questions (Nov. 30, 2017) (emphases added). The
government notes that a district court relied on FAQs
containing this language in parallel litigation to dismiss a
nearly identical information-use due process claim. See
Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279–81
(E.D.N.Y. 2018).

      But this case is critically different because in Batalla
Vidal the plaintiffs had attached the new version of the FAQs
to their complaint. As the court there explained, “Plaintiffs
. . . have effectively pleaded themselves out of court by
relying on a document that contradicts their otherwise-
unsupported allegation of a change to DHS’s information-
use policy.” Id. at 280. By contrast, here the most recent
FAQs were not attached to or referenced in any of the
         REGENTS OF THE UNIV. OF CAL. V. USDHS                    85

complaints—indeed, they postdate the filing of the
complaints. Therefore, the normal rule applies: materials
outside the complaint cannot be considered on a motion to
dismiss. See United States v. Ritchie, 342 F.3d 903, 908 (9th
Cir. 2003).

    Even if it could be considered, this newest FAQ would
not conclusively resolve the question of fact surrounding
DHS’s current information-sharing policy because it still
contains the language that suggests a change from the pre-
rescission policy.       See USCIS, Guidance, supra
(“[I]nformation will only be proactively provided to ICE or
CBP if the requestor meets the criteria for the issuance of a
Notice To Appear[.]”) (emphasis added). 28 Plaintiffs have
plausibly alleged that DHS has changed its policy.

    Finally, in order to state a substantive due process claim,
plaintiffs must allege conduct that “shock[s] the conscience
and offend[s] the community’s sense of fair play and
decency.” Sylvia Landfield Tr. v. City of L.A., 729 F.3d
1189, 1195 (9th Cir. 2013) (quoting March v. Cty. of San
Diego, 680 F.3d 1148, 1154 (9th Cir. 2012)). The
government makes a passing argument that this standard is
not satisfied because the information-sharing policy has
always contained some exceptions, but as the Garcia
plaintiffs put it, “[a]pplicants accepted those limited,
acknowledged risks when they applied for DACA. They did
not accept the risk that the government would abandon the
other assurances that were ‘crucial’ to ‘inducing them to
    28
        Astonishingly, this sentence—which appears to represent a
change from the prior policy of affirmatively protecting information
from disclosure—is immediately adjacent to DHS’s assurance that
nothing has changed. Cf. George Orwell, Nineteen Eighty-Four (1949),
at 175 (“Oceania was at war with Eastasia: Oceania had always been at
war with Eastasia.”).
86       REGENTS OF THE UNIV. OF CAL. V. USDHS

apply for DACA.’” (alterations incorporated). We agree.
Cf. Raley v. Ohio, 360 U.S. 423, 437–39 (1959) (holding that
“convicting a citizen for exercising a privilege which the
State had clearly told him was available to him” was “the
most indefensible sort of entrapment by the State” and
violated due process); Cox v. Louisiana, 379 U.S. 559, 568–
71 (1965) (due process violation where defendant was
convicted for leading a demonstration in a location where the
police chief had given him permission to do so). Plaintiffs
have stated a due process claim based on the alleged change
in DHS’s information-sharing policy.

E. Equal Protection

    The district court also held that plaintiffs stated a viable
equal protection claim by plausibly alleging that the DACA
rescission disproportionately affected Latinos and
individuals of Mexican descent and was motivated by
discriminatory animus. See Arce v. Douglas, 793 F.3d 968,
977 (9th Cir. 2015) (holding a facially neutral action
unconstitutional where “its enactment or the manner in
which it was enforced were motivated by a discriminatory
purpose,” and reviewing the Arlington Heights factors for
assessing discriminatory purpose) (citing Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66
(1977)).

    Because the district court denied the government’s
motion to dismiss plaintiffs’ equal protection claim at the
pleading stage, we take all of the complaints’ allegations as
true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and
construe them in the light most favorable to the plaintiffs,
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We
agree with the district court that plaintiffs plausibly alleged
an equal protection claim.
          REGENTS OF THE UNIV. OF CAL. V. USDHS                        87

    Most significantly, plaintiffs allege that the rescission of
DACA disproportionately impacts Latinos and individuals
of Mexican heritage, who account for 93% of DACA
recipients. See Arlington Heights, 429 U.S. at 266. The
complaints also allege a history of animus toward persons of
Hispanic descent 29 evidenced by both pre-presidential and
post-presidential 30 statements by President Trump, who is
alleged to have decided to end DACA, even though the
directive to the Acting Secretary was issued from Attorney
General Sessions. Finally, the district court properly
considered “the unusual history behind the rescission,” all
of which appeared in the record submitted by the
government. See Arlington Heights, 429 U.S. at 267. As the
district court noted, “DACA received reaffirmation by the
agency 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). This strange

    29
       The government argues that the statements by the President cited
in the complaints do not provide sufficient evidence to plausibly allege
discriminatory intent. The government first submits that nationality, as
opposed to ethnicity, is not an invidious classification, and that many of
the cited comments go only to Mexican nationality. “Often, however,
the two are identical as a factual matter: one was born in the nation whose
primary stock is one’s own ethnic group.” St. Francis Coll. v. Al-
Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring). And
plaintiffs allege discriminatory intent not only toward “Mexican
nationals,” but also toward “individuals of Mexican heritage, and
Latinos.”
    30
       The district court took judicial notice of one such statement by the
President: “[o]n December 29, 2017, President Trump tweeted: ‘The
Democrats have been told, and fully understand, that there can be no
DACA without the desperately needed WALL at the Southern Border
and an END to the horrible Chain Migration & ridiculous Lottery System
of Immigration etc. We must protect our Country at all cost!’” There
were many similar statements made by the President after he took the
oath of office leading up to the DACA rescission on September 5, 2017.
88      REGENTS OF THE UNIV. OF CAL. V. USDHS

about-face, done at lightning speed, suggests that the normal
care and consideration within the agency was bypassed.”

    The government contends that the equal protection claim
is foreclosed by AADC, in which the Supreme Court stated
that “as a general matter . . . an alien unlawfully in this
country has no constitutional right to assert selective
enforcement as a defense against his deportation.” 525 U.S.
at 488. But in the context of this case, the challenge to the
rescission of DACA is not raised “as a defense against []
deportation,” and is not a claim of “selective enforcement.”
Id. Rather, it is a freestanding claim that the Executive
Branch, motivated by animus, ended a program that
overwhelmingly benefits a certain ethnic group. Thus, the
equal protection claim does not implicate the concerns
motivating the Court in AADC and underscored by the
government: inhibiting prosecutorial discretion, allowing
continuing violations of immigration law, and impacting
foreign relations. The two cases cited by the government do
not support its position, as both of them involved an
individual noncitizen making an equal protection argument
in an attempt to avoid his own deportation. See Kandamar
v. Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Hadayat v.
Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Plaintiffs’
challenge to the rescission of DACA—which is itself
discretionary—is not such a case.

    The government also contends that even if not totally
barred by AADC, plaintiffs’ claims must be subject to the
heightened pleading standard applied to selective-
prosecution claims in the criminal context. See United States
v. Armstrong, 517 U.S. 456, 463–65 (1996). But this
argument meets the same objection: as the district court held,
plaintiffs’ challenge is not a selective-prosecution claim.
         REGENTS OF THE UNIV. OF CAL. V. USDHS              89

We are therefore not persuaded by the government’s
arguments.

    The Supreme Court’s recent decision in Trump v.
Hawaii, 138 S. Ct. 2392 (2018), does not foreclose this
claim. There, statements by the President allegedly
revealing religious animus against Muslims were “[a]t the
heart of plaintiffs’ case . . . .” Hawaii, 138 S. Ct. at 2417.
The Court assumed without deciding that it was proper to
rely on the President’s statements, but nevertheless upheld
the challenged executive order under rational basis review.
Id. at 2420, 2423. Here, by contrast, plaintiffs provide
substantially greater evidence of discriminatory motivation,
including the rescission order’s disparate impact on Latinos
and persons of Mexican heritage, as well as the order’s
unusual history. Moreover, our case differs from Hawaii in
several potentially important respects, including the physical
location of the plaintiffs within the geographic United States,
see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir.
2014) (en banc), the lack of a national security justification
for the challenged government action, and the nature of the
constitutional claim raised.

    Therefore, we conclude that plaintiffs have stated a
plausible equal protection claim.

                             VII.

    The rescission of DACA—based as it was solely on a
misconceived view of the law—is reviewable, and plaintiffs
are likely to succeed on their claim that it must be set aside
under the APA. We therefore affirm the district court’s entry
90        REGENTS OF THE UNIV. OF CAL. V. USDHS

of a preliminary injunction. 31 The district court also
properly dismissed plaintiffs’ APA notice-and-comment
claim, and their claim that the DACA rescission violates
their substantive due process rights. The district court also
properly denied the government’s motion to dismiss
plaintiffs’ APA arbitrary-and-capricious claim, their claim
that the new information-sharing policy violates their due
process rights, and their claim that the DACA rescission
violates their right to equal protection.

                          *        *        *

    The Executive wields awesome power in the
enforcement of our nation’s immigration laws. Our decision
today does not curb that power, but rather enables its
exercise in a manner that is free from legal misconceptions
and is democratically accountable to the public. Whether
Dulce Garcia and the hundreds of thousands of other young
dreamers like her may continue to live productively in the
only country they have ever known is, ultimately, a choice
for the political branches of our constitutional government.
With the power to make that choice, however, must come
accountability for the consequences.

     AFFIRMED.




     31
        We do not disagree with the reasoning of Judge Owens’s
concurring opinion that the likelihood of success on plaintiffs’ equal
protection claim is a second, alternative ground for affirming the entry
of the injunction.
          REGENTS OF THE UNIV. OF CAL. V. USDHS                        91

OWENS, Circuit Judge, concurring in the judgment:

    As I believe that Plaintiffs’ Equal Protection claim has
some “likelihood of success on the merits,” I concur in the
judgment affirming the preliminary injunction.           The
extraordinary practical impact of allowing DACA’s
rescission to take effect before a final adjudication of its
legality far outweighs the minimal practical impact of
keeping the program in place a bit longer. For that reason, it
is better now to risk incorrectly preserving the status quo
than to risk incorrectly disrupting it. 1 However, I disagree
with the portion of the majority’s opinion that we may
review the rescission of DACA for compliance with the
APA. 2

    Under 5 U.S.C. § 701(a)(2), “agency action [that] is
committed to agency discretion by law” is not subject to
judicial review for compliance with the APA. Since Heckler

     1
       The government appears to share this view. In its petition for
certiorari before judgment, the government asserted that “a primary
purpose of the Acting Secretary’s orderly wind-down of the DACA
policy was to avoid the disruptive effects on all parties of abrupt shifts
in the enforcement of the Nation’s immigration laws. Inviting more
changes before final resolution of this litigation would not further that
interest.”

    2
       As for the government’s appeal from the motions to dismiss, I
dissent, for reasons stated here, from the majority’s holding to affirm the
district court’s denial of the motion to dismiss Plaintiffs’ APA arbitrary-
and-capricious claim (Part VI-A). However, I concur in the majority’s
holding to affirm the district court’s dismissal of Plaintiffs’ APA notice-
and-comment claim (Part VI-B). I also concur in the judgment to affirm
the district court’s ruling on Plaintiffs’ Due Process claims (Part VI-C;
Part VI-D). And, as explained here as well, I agree with the majority’s
decision to affirm the district court’s denial of the motion to dismiss the
Equal Protection claim (Part VI-E) and hold that the Equal Protection
claim offers an alternative ground to affirm the preliminary injunction.
92      REGENTS OF THE UNIV. OF CAL. V. USDHS

v. Chaney, courts read § 701(a)(2) to preclude judicial
review of certain types of administrative action that are
“traditionally . . . ‘committed to agency discretion.’”
470 U.S. 821, 832 (1985) (holding unreviewable the
decision not to institute enforcement proceedings); Lincoln
v. Vigil, 508 U.S. 182, 192 (1993) (same for the allocation of
funds from a lump-sum appropriation); Webster v. Doe,
486 U.S. 592, 599–600 (1988) (same for decisions of the
Director of the Central Intelligence Agency to terminate an
employee due to national security interests); ICC v. Bhd. of
Locomotive Eng’rs, 482 U.S. 270, 281–82 (1987) (BLE)
(same for an agency’s refusal to grant reconsideration of an
action due to material error).

    An agency decision to rescind a non-enforcement policy
in the immigration context is this type of administrative
action. From Heckler, we know that agency actions that
“involve[] a complicated balancing of a number of factors,”
like allocating agency resources and prioritizing agency
policies, “are peculiarly within [the agency’s] expertise,”
and are therefore “general[ly] unsuitab[le] for judicial
review.” 470 U.S. at 831. And in Reno v. American-Arab
Anti-Discrimination Committee, 525 U.S. 471 (1999)
(AADC), the Supreme Court made clear that Executive
Branch decisions that implicate enforcement priorities in the
context of immigration are among those that judges are least
equipped to review. Id. at 489–90. In AADC, the Court
explained that the concerns necessitating the Executive’s
“broad discretion” in criminal prosecutions are “greatly
magnified in the deportation context.” Id. (citing United
States v. Armstrong, 517 U.S. 456, 464 (1996)).

   In deciding to rescind an immigration policy of non-
enforcement, DHS thus acts with broad discretion that courts
cannot review absent clear congressional authorization.
         REGENTS OF THE UNIV. OF CAL. V. USDHS               93

Here, rather than authorize judicial review, the broad,
discretion-granting language of the enabling statute
reinforces that DHS’s enforcement decision is not subject to
APA review. See 6 U.S.C. § 202(5) (“The Secretary shall be
responsible for . . . [e]stablishing national immigration
enforcement policies and priorities.”); see also Webster,
486 U.S. at 599–600.

    Perhaps recognizing that immigration enforcement
decisions exhibit the characteristics of unreviewable agency
actions, the majority decides that we should nonetheless
review the rescission of DACA because these features are
not actually at work here: Acting Secretary Duke explained
that DACA was rescinded based on DHS’s belief that the
program was unlawful. The majority points to Heckler’s
footnote 4, where the Court left open the question whether
courts may review agency action if “a refusal by the agency
to institute proceedings [is] based solely on the belief that it
lacks jurisdiction.” Heckler, 470 U.S. at 833 n.4 (“[W]e
express no opinion on whether such decisions would be
unreviewable under § 701(a)(2) . . . .”). The majority
concludes that the Supreme Court has not yet answered this
question, and that our court, in Montana Air Chapter No. 29
v. FLRA, 898 F.2d 753, 756–57 (9th Cir. 1990), has
answered it in the affirmative: that otherwise unreviewable
agency action is reviewable when the agency justifies its
action by reference to its understanding of its jurisdiction. I
respectfully disagree.

    In Montana Air, we confronted the question left open in
Heckler’s footnote 4. Specifically, we held that a decision
by the Federal Labor Relations Authority’s General Counsel
not to issue an unfair labor practice complaint was
reviewable only because his decision was “based solely on
his belief that he lacks jurisdiction to issue such a
94        REGENTS OF THE UNIV. OF CAL. V. USDHS

complaint.” Id. at 756. But what we held reviewable were
the General Counsel’s “statutory and regulatory
interpretations to determine if his belief that he lacked
jurisdiction was correct.” Id. at 757. Applying Chevron, we
found “impermissible” the General Counsel’s interpretations
of the statute under which he acted. Id. at 758.

    Here, by contrast, Plaintiffs do not ask that we apply
Chevron to review whether Acting Secretary Duke
impermissibly interpreted 6 U.S.C. § 202(5) in concluding
that the statute authorized the rescission of DACA. 3 Instead,
Plaintiffs ask that we review for arbitrariness and
capriciousness the procedures the agency used to rescind
DACA. But nothing in Montana Air suggests that Heckler’s
footnote 4 authorizes arbitrary-and-capricious, rather than
Chevron, review of agency action simply because the agency
acted based on its understanding of its enabling statute. And,
despite Plaintiffs’ arguments to the contrary, BLE plainly
prohibits us from doing so.

     In BLE, the Supreme Court held that an agency’s refusal
to reconsider a prior adjudicative decision was unreviewable
even where the agency based its refusal on its interpretation
of its enabling statute. 482 U.S. at 278–84. In so holding,
the Court explained that the agency’s refusal to reconsider
was unreviewable because it was the type of action that “has
traditionally been ‘committed to agency discretion,’” id. at
282 (quoting Heckler, 470 U.S. at 832); thus any inquiry into
its reasons for acting was inappropriate, id. at 280–81. “It is

     3
       This is not surprising: § 202(5) makes the Secretary “responsible
for . . . [e]stablishing national immigration enforcement policies and
priorities.” If we accept that this broad, discretion-granting statute
authorized DACA’s implementation, it surely also sanctions DACA’s
termination.
        REGENTS OF THE UNIV. OF CAL. V. USDHS              95

irrelevant that the [agency’s] order refusing reconsideration
discussed the merits of the unions’ claim at length,” the
Court explained, as “[i]t would hardly be sensible to say that
the [agency] can genuinely deny reconsideration only when
it gives the matter no thought.” Id. BLE thus makes clear
that when determining the scope of permissible judicial
review, courts consider only the type of agency action at
issue, not the agency’s reasons for acting.

     Finally, Plaintiffs argue that even if BLE precludes
review of some types of agency action regardless of the
agency’s reason for acting, that rule only applies to single-
shot enforcement decisions, not to general statements of
policy. See NAACP v. Trump, 298 F. Supp. 3d 209, 227–36
(D.D.C. 2018) (discussing Crowley Caribbean Transp., Inc.
v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994), and permitting
APA review on this ground). In other words, Plaintiffs
would have us hold that general statements of policy—but
not single-shot enforcement decisions—are subject to APA
review when the agency’s sole reason for acting is its
understanding of its jurisdiction. While the majority
acknowledges Plaintiffs’ argument without reaching its
merits, I believe that such a distinction collapses Heckler on
its head: In deciding whether agency action is reviewable,
the first question we ask is what type of agency action is
before us—whether it is agency action that courts typically
review or agency action “traditionally . . . ‘committed to
agency discretion.’” Heckler, 470 U.S. at 832. This initial
inquiry includes consideration of whether the action is a
single-shot non-enforcement decision or a general statement
of policy. It would beg the question to conclude that
unreviewable agency action is in fact reviewable because it
is the type of action that courts typically review.
96       REGENTS OF THE UNIV. OF CAL. V. USDHS

    I would therefore hold that § 701(a)(2) precludes us from
subjecting DACA’s rescission to arbitrary-and-capricious
review.

    At the same time, as the government concedes, DACA’s
rescission may be reviewed for compliance with the
Constitution. I would hold that Plaintiffs have plausibly
alleged that the rescission of DACA was motivated by
unconstitutional racial animus in violation of the Equal
Protection component of the Fifth Amendment, and that the
district court correctly denied the government’s motion to
dismiss this claim.

      Notably, Plaintiffs did not seek a preliminary injunction
on their Equal Protection claim, instead relying solely on
their APA argument. Nonetheless, this court may affirm a
preliminary injunction on any basis supported by the record.
Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1021 (9th Cir.
2013). And because a preliminary injunction preserves the
court’s power to render a meaningful decision on the merits,
we can affirm an injunction issued on legally erroneous
grounds where remand for consideration of alternative
grounds is warranted. See Gerling Global Reinsurance
Corp. of Am. v. Low, 240 F.3d 739, 754 (9th Cir. 2001) (“It
is possible that [the challenged law] violates the Due Process
Clause, but the district court did not reach that issue, and it
is not fully developed in the record or in the briefs presented
to this court. We leave the preliminary injunction in place
in order to give the district court an opportunity to consider
whether Plaintiffs are likely to succeed on the merits.”); see
also United States v. Hovsepian, 359 F.3d 1144, 1157 (9th
Cir. 2004) (en banc) (holding that the district court erred in
entering an injunction but leaving “the injunction in place
. . . pending the conclusion of all proceedings in this case, in
aid of the court’s jurisdiction”). Accordingly, I would affirm
          REGENTS OF THE UNIV. OF CAL. V. USDHS                       97

the preliminary injunction and remand for consideration
whether Plaintiffs have demonstrated a likelihood of success
on the merits of their Equal Protection claim.

    As the majority details, the record assembled at this early
stage is promising.           Plaintiffs highlight (1) the
disproportionate impact DACA’s rescission has on
“individuals of Mexican heritage, and Latinos, who together
account for 93 percent of approved DACA applications”;
(2) a litany of statements by the President and high-ranking
members of his Administration that plausibly indicate
animus toward undocumented immigrants from Central
America; 4 and (3) substantial procedural irregularities in the
challenged agency action.

    Such evidence—plus whatever additional evidence
Plaintiffs muster on remand—may well raise a presumption
that unconstitutional animus was a substantial factor in the
rescission of DACA. See Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977); see also
Hawaii, 138 S. Ct. at 2420 (holding that courts “may
consider plaintiffs’ extrinsic evidence” as permitted by the
applicable level of scrutiny). If the government fails to rebut
that presumption, Plaintiffs will have demonstrated a
likelihood of success on the merits. See Arlington Heights,
429 U.S. at 270 & n.21 (noting that proof that an action was
motivated by a discriminatory purpose shifts to the
government the burden of establishing that the same decision
would have resulted without the impermissible purpose);

    4
      Like the majority, I do not interpret Trump v. Hawaii, 138 S. Ct.
2392 (2018), to preclude review of the President’s statements when
applying the Arlington Heights standard. At the merits stage, the district
court can still decide whether, or to what degree, the President’s
statements betray a discriminatory animus behind DACA’s rescission.
98       REGENTS OF THE UNIV. OF CAL. V. USDHS

Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 429 (2006) (affirming the injunction
where the government failed to meet its burden at
preliminary injunction stage, because “the burdens at the
preliminary injunction stage track the burdens at trial”). As
such, I believe that Plaintiffs have plausibly alleged an Equal
Protection violation and that the district court should decide
whether it is an alternative ground to grant the preliminary
injunction.

    Moreover, the balance of equities here weighs heavily in
favor of affirming the preliminary injunction. A merits
decision from the district court concluding that the Executive
rescinded DACA because of unconstitutional racial animus
would be little more than an advisory opinion if by that time
thousands of young people had lost their status due to the
lack of an injunction preserving it. Preliminary injunctive
relief exists precisely for circumstances like these: “The
purpose of a preliminary injunction is merely to preserve the
relative positions of the parties until a trial on the merits can
be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395
(1981). Thus, on these facts, the district court was correct to
issue a preliminary injunction. See Ashcroft v. ACLU,
542 U.S. 656, 670 (2004) (affirming injunction where “the
potential harms from reversing the injunction outweigh
those of leaving it in place by mistake”); Doran v. Salem Inn,
Inc., 422 U.S. 922, 932 (1975) (granting preliminary relief
because “otherwise a favorable final judgment might well be
useless”); Brown v. Chote, 411 U.S. 452, 457 (1973); cf.
Winter v. NRDC, Inc., 555 U.S. 7, 26 (2008) (reversing
injunction without addressing likelihood of success on the
merits where “the balance of equities and consideration of
the overall public interest in this case tip strongly in favor of
[defendants]”).
         REGENTS OF THE UNIV. OF CAL. V. USDHS               99

    Accordingly, while I would remand for the district court
to evaluate the Plaintiffs’ likelihood of success on the merits
of their Equal Protection claim as an alternative basis for
preliminary relief in the first instance, I join the majority in
affirming the preliminary injunction to preserve the status
quo while Plaintiffs attempt to prove up that claim.
