Obama Non-Deportation Policy Case — Crane v Napolitano - Motion to Intervene University Leadership Initiative

8/20/2019 Obama Non-Deportation Policy Case — Crane v Napolitano - Motion to Intervene University Leadership Initiative

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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTOPHER L. CRANE, DAVID A. )ENGLE, ANASTASIA MAR IE )CARROLL, RICARDO DIAZ, )LORENZO GARZA, FELIX )LUCIANO, TRE REBSTOCK, )FERNANDO SILVA, SAMUEL )MARTIN, and JAMES D. DOEBLER ) Civil Action No.

) 3:12-CV-3247-0Plaintiffs, )

)v. )

)JANET NAPOLITANO, in her official )capacity as Secretary of Homeland )Security, JOHN MORTON, in his )official capacity as Director of )Immigration and Customs Enforcement, )And ALEJANDRO MAYORKAS, in his )Official capacity as Director of the United )States Citizenship and Immigration Services )

))

Defendants, ))

and ))

PAMELA RESÉNDIZ, CAROLINA CANIZALEZ, )and the UNIVERSITY LEADERSHIP INITIATIVE )

))

Proposed Defendant-Intervenors. )

PROPOSED DEFENDANT-INTERVENORS’

MOTION TO INTERVENE AS DEFENDANTS,

OR IN THE ALTERNATIVE, MOTION FOR LEAVE

TO PARTICIPATE AS AMICI CURIAE

Proposed Defendant-Intervenors Pamela Reséndiz and Carolina Canizalez (collectively,

“Proposed Individual Defendant-Intervenors”), and the University Leadership Initiative (“ULI”

Case 3:12-cv-03247-O Document 61 Filed 05/06/13 Page 1 of 6 PageID 1027


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

leave to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2), or alternatively, permissive

intervention under Fed. R. Civ. P. 24(b)(1), so they may participate actively in this case and

protect their personal interests at stake by presenting evidence and argument that will assist the

Court with rendering its decision. In the alternative, Proposed Defendants-Intervenors

respectfully move the Court for leave to participate as amici curiae pursuant to Local Rule 7.2.

Proposed Defendant-Intervenors respectfully submit the accompanying Memorandum of Law in

Support of Motion to Intervene as Defendants, or in the Alternative, Motion for Leave to

Participate as Amici Curiae, as Defendants, and Answer to Plaintiffs’ Amended Complaint, inaccordance with Local Civil Rules 7.1-7.4.

Proposed Defendant-Intervenors’ Proposed Answer and in the alternative, proposed Brief

as Amici, are attached to this Motion as Exhibits A and B, respectively.

Proposed Defendant-Intervenors, who stand to be negatively and personally affected by

the outcome in this case, seek to intervene in this action in order to oppose Plaintiffs’ request for

injunctive relief preventing the implementation of the June 15, 2012 Memorandum issued by

Defendant Secretary of Homeland Security Janet Napolitano entitled “Exercising Prosecutorial

Discretion with Respect to Individuals Who Came to the United States as Children” (the “DHS

Memorandum”). Dkt. 24 at 24. Proposed Defendant-Intervenors further oppose Plaintiffs’

request for declaratory judgment that the DHS Memorandum violates the Administrative

Procedure Act and Articles I and II of the United States Constitution. Dkt. 24 at 23-24.

Proposed Defendant-Intervenors recognize this Court’s interest in the efficient conduct of

future proceedings in this matter. Thus, if intervention is granted, Proposed Defendant-

Intervenors will (i) avoid unnecessary delays; and (ii) coordinate all future proceedings in this



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action with the existing parties, to the extent possible, consistent with their respective duties and

ethical obligations to their respective clients.

Pamela Reséndiz is a resident of Travis County and Carolina Canizalez is a resident of

Bexar County, Texas. Ex. C at ¶2, Ex. D at ¶2. Ms. Reséndiz and Ms. Canizalez have been

granted deferred action and employment authorization under the DHS Memorandum. Ex. D at

¶2, Ex. D at ¶2.

ULI is a membership-based association and student organization of the University of

Texas at Austin (“UT-Austin”). Ex. E at ¶ 3. ULI’s mission is to advance the educational

attainment and civil rights of undocumented immigrant youth. Id . at ¶ 3. ULI fulfills itsmissions by promoting higher education for immigrant students; encouraging academic success

and civic participation among undocumented immigrant students in secondary schools; and

conducting outreach at the local, state and national level to address problems faced by

undocumented immigrant students in college. Id . at ¶¶ 11-15. ULI moves to intervene on behalf

of its members, including undocumented immigrant students1 currently enrolled in public

colleges and universities in Texas and who qualify for deferred action under the DHS Memo, as

well as on behalf of itself as an organization.

Both the Proposed Individual and Organizational Defendant-Intervenors have a unique

interest in the subject matter of this litigation that supports their intervention, or in the

alternative, their participation in this case as amici curiae. First, if the DHS Memorandum is

enjoined, Proposed Individual Defendant-Intervenors Reséndiz and Canizalez, and members of

ULI, will either lose deferred action status or they will be not be able to renew their deferred

1 The term “undocumented immigrant student(s)” is used to describe persons residing in the United States who donot have authorization by the U.S. government to reside in the United States. Undocumented presence in the UnitedStates is a civil offense – not a criminal violation.



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action status. Ex. C at ¶8, Ex. D at ¶10. They will also likely lose their employment

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

An injunction would also significantly impact the Proposed Organizational Defendant-

Intervenor, which will be forced to expend additional resources educating members about the

effect of the injunction on their applications for deferred action, and whose members’ ability to

achieve higher education and civic participation will be greatly impaired if an injunction is

entered. Ex. E at ¶¶19-21.

For all the reasons stated herein, and for those addressed in the accompanying

Memorandum of Law in Support of their Motion to Intervene as Defendants, or in theAlternative, Motion for Leave to Participate as Amici Curiae, Proposed Defendant-Intervenors

respectfully request that this Court grant their Motion to Intervene, or alternatively, for leave to

participate as amicus curiae pursuant to Local Rule 7.2.

Dated: May 6, 2013 Respectfully submitted,

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, I NC.

s/Marisa Bono __________Marisa BonoState Bar No. 24052874David G. HinojosaState Bar No. 24010689 Nina PeralesState Bar No. 24005046110 Broadway, Ste. 300San Antonio, Texas 78205E-mail: [email protected] Telephone: (210) 224-5476Telecopier: (210) 224-5382



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CLOUTMAN AND CLOUTMAN

Edward B. Cloutman IIIState Bar No. 04411000Edward B. Cloutman IV

State Bar No. 240740453301 Elm St.Dallas, TX 75226E-mail: [email protected] Telephone: (214) 939-9222Telecopier: (214) 939-9229

Attorneys for Proposed Defendant-Intervenors

CERTIFICATE OF CONFERENCE

On May 6, 2013, the undersigned counsel for Proposed Defendant-Intervenors conferred

with counsel of record for Plaintiffs by electronic correspondence regarding the above-

referenced Motion. Plaintiffs are opposed to Proposed Defendant-Intervenors intervening in the

case, and they are opposed to Proposed Defendant-Intervenors participating as amici. On May 6,

2013, the undersigned counsel for Proposed Defendant-Intervenors conferred with counsel of

record for Defendants by telephone regarding the above-referenced Motion, and Defendants take

no position on Proposed Defendant-Intervenors intervening in the case or participating as amici.

/s/ Marisa Bono _______



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CERTIFICATE OF SERVICE

I hereby certify that on May 6, 2013, I electronically filed the foregoing with the Clerk of

court by using the CM/ECF system which will send a notice of electronic filing to counsel ofrecord who are registered participants of the Courts CM/ECF system. I further certify that I

mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of

record who are not CM/ECF participants as indicated in the notice of electronic filing.

By: _____ s/Marisa Bono _



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DALLAS DIVISION



)v. )


))

Defendants, ))

and ))


))

Proposed Defendant-Intervenors. )

PROPOSED DEFENDANT-INTERVENORS’

BRIEF AND MEMORANDUM OF LAW IN SUPPORT OF

MOTION TO INTERVENE AS DEFENDANTS

OR IN THE ALTERNATIVE, MOTION FOR LEAVE

TO PARTICIPATE AS AMICI CURIAE

PARTICIPATE AS AMICI CURIAE

Case 3:12-cv-03247-O Document 61-1 Filed 05/06/13 Page 1 of 26 PageID 1033


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TABLE OF CONTENTS

INRODUCTION ............................................................................................................................1

Procedural Background ................................................................................................................1

Proposed Defendant-Intervenors .................................................................................................3

Proposed Defendant-Intervenors’ Requested Relief ..................................................................5

ARGUMENT..................................................................................................................................6

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

A.

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

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

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

D. The Existing Defendants Will Not Adequately Represent

Movants’ Interests ...............................................................................................15

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

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

CONCLUSION ............................................................................................................................20



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TABLE OF AUTHORITIES

CASES

Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318 (5th Cir. 1986) ..................9

Black Fire Fighters Ass’n of Dallas v. City of Dallas, 19 F.3d 992 (5th Cir. 1994).....................15

Ceres Gulf v. Cooper , 957 F.2d 1199 (5th Cir. 1992) ..............................................................10,15

Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) ............................................................15,13

Day v. Sebelius, 227 F.R.D. 668 (D. Kan. 2005)...............................................................12, 17, 18

Decker v. United States Department of Labor,

473 F. Supp. 770 (E.D. Wis. 1979)....................................................................................13

Diaz v. S. Drilling Corp., 427 F.2d 1118 (5th Cir. 1970)..............................................................12

Dimond v. District of Columbia, 792 F.2d 179 (D.C. Cir. 1986) ..................................................16

Donaldson v. United States, 400 U.S. 517 (1971).........................................................................12

Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) .....................................................7, 8, 11

Ford v. City of Hunstville, 242 F.3d 235 (5th Cir. 2001) ..............................................................10

Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489 (9th Cir. 1995).........................15

Gen. Tel. Co. of the Nw., Inc. v. EEOC , 446 U.S. 318 (1980).......................................................16

Grutter v. Bollinger , 188 F.3d 394 (6th Cir. 1999)........................................................................14

Howse v. S/V , 641 F.2d 317 (5th Cir. 1981) ..................................................................................19

In re Lease Oil Antitrust Litig., 570 F.3d 244 (5th Cir. 2009).........................................................7

John Doe No. 1 v. Glickman, 256 F.3d 371 (5th Cir. 2001)............................................................7

Lewis v Stark , 312 F. Supp. 197 (N.D. Cal. 1978).........................................................................13

Martin v. Travelers Indem. Co., 450 F.2d 542 (5th Cir. 1971)......................................................15

Mich. State AFL-CIO v. Miller , 103 F.3d 1240 (6th Cir. 1997) ....................................................14

Natural Res. Def. Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977) ............................................16



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New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co.,732 F.2d 452 (5th Cir.1984) ..........................................................................................5, 19

Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005) ............................................................................12

Saldano v. Roach, 363 F.3d 545 (5th Cir. 2004) .............................................................................7

Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) ....................................................................7, 15

Sierra Club v. Fed. Emergency Mgmt. Agency, No. 07-0608, 2008 U.S. Dist. LEXIS 47405 (S.D. Tex. June 11, 2008) ...........................16

Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) .......................................................7, 10

Texas E. Transmission Corp., 923 F.2d 410 (5th Cir. 1991).........................................................14

Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972) .............................................15, 18

United States v. LULAC , 793 F.2d 636 (5th Cir. 1986).................................................................19

Usery v. Brandel, 87 F.R.D. 670 (W.D. Mich. 1980)....................................................................13

CONSTITUTIONAL PROVISIONS AND STATUTES

8 U.S.C. § 1225............................................................................................................................2, 5

8 U.S.C. § 1225(a) ...........................................................................................................................8

8 U.S.C. § 1225(b)(1) ....................................................................................................................17

8 U.S.C. § 1225(b)(1)(A)...............................................................................................................17

8 U.S.C. § 1225(b)(1)(A)(iii).........................................................................................................17

8 U.S.C. § 1225(b)(2)(A).........................................................................................................16, 17

8 U.S.C. § 1225(b)(2)(B)(ii) ..........................................................................................................17

8 C.F.R. § 247 a.12(e)....................................................................................................................13

45 C.F.R. § 1060............................................................................................................................13

Fed. R. Civ. P. 24...........................................................................................................................14

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



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

FED. R. CIV. P. 24(b) ......................................................................................................................18

OTHER AUTHORITIES

3B JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE ¶ 24.07[4] (2d ed. 1995) .............15

7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 1904 (3d ed. 2007)...............................................19

7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 1909 (3d ed. 2007)...............................................16



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Proposed Defendant-Intervenors Pamela Reséndiz and Carolina Canizalez (“Proposed

Individual Defendant-Intervenors”), and the University Leadership Initiative (“ULI” or

“Proposed Organizational Defendant-Intervenor”), (collectively, “Proposed Defendant-

Intervenors” or “Movants”), are recipients of relief granted under the challenged action in this

case and hereby respectfully submit the following Brief and Memorandum of Law in Support of

Motion to Intervene as Defendants or in the Alternative, Motion for Leave to Participate as Amici

Curiae.

INTRODUCTION

Procedural Background

Plaintiffs, law enforcement officers of the United States and Immigration and Customs

Enforcement (“ICE”), filed this action against Defendants Janet Napolitano in her official

capacity as Secretary of Homeland Security, John Morton in his official capacity as Director of

Immigration and Customs Enforcement, and Alejandro Mayorkas in his official capacity as

Director of the United States Citizenship and Immigration Services (collectively, “Defendants”).1

Plaintiffs seek to halt the enforcement of the June 15, 2012 Memorandum issued by Defendant

Napolitano entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came

to the United States as Children” (the “DHS Memorandum” or “DACA”). Dkt. 24 at 24.

The DHS Memorandum states that ICE agents should “exercise their [prosecutorial]

discretion, on an individual basis, in order to prevent low priority individuals from being placed

into removal proceedings.” Dkt. 15, App. A at 2. The memorandum identifies as “low priority”

certain young people who were brought to the United States and did not have the intent to violate

1 The State of Mississippi, by and through Governor Phil Bryant, was originally added as a plaintiff, but the Courtdismissed its claims for lack of standing. Dkt. 41 at 32.



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U.S. immigration laws at the time of entry. See id. at 2. Specifically, in order to qualify for

relief under DACA, applicants must complete a background check and must: have come to the

United States under the age of sixteen and not be older than thirty; have continuously resided in

the United States for at least five years; have a high school diploma, general education

development certificate (GED), or honorable discharge from the Coast Guard or the Armed

Forces of the United States; and must not have a conviction for a felony, “significant

misdemeanor,”2 multiple misdemeanor offenses, or otherwise pose a threat to national security or

public safety. Applicants also must have entered without inspection or have expired immigration

status prior to June 15, 2012.

3

Plaintiffs seek declaratory relief on six causes of action: (1) the DHS Memorandum

violates 8 U.S.C. § 1225 because the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”) requires Plaintiffs to initiate removal proceedings when they encounter

illegal immigrants who are not “clearly and beyond a doubt entitled to be admitted,” and that any

“prosecutorial discretion” can only be exercised after removal proceedings have been initiated;

(2) the DHS Memorandum violates federal law because it confers deferred action, which is not

authorized by federal law or regulation; (3) the DHS Memorandum violates federal law because

it uses “prosecutorial discretion to grant employment authorization to unlawfully present aliens”

2 USCIS has defined the “significant misdemeanor” category as any offense involving “domestic violence, sexualabuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving

under the influence. . . or any offense for which the individual was sentenced to time in custody for more than 90days.” See “Consideration of Deferred Action for Childhood Arrivals Process: Frequently Asked Questions,”(“DACA FAQ”), Nov. 16, 2012, available athttp://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD.

3 Instructions for Consideration of Deferred Action for Childhood Arrivals” USCIS form I-821D, p.1, available athttp://www.uscis.gov/files/form/i-821d.pdf.



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without authorization by federal law;4 (4) the DHS Memorandum violates Article I, Section 1 of

the U.S. Constitution, the allocation of legislative power to Congress; (5) the DHS Memorandum

violates Article II, Section 3 of the U.S. Constitution, which obligates the Executive branch to

take care that laws are faithfully executed; and (6) the DHS Memorandum violates the

Administrative Procedures Act because it confers a benefit without a regulatory implementation.

See Dkt. 15 at 15-24.

On April 8, 2013, the Court heard Plaintiffs’ Application for Preliminary Injunction and

later found that Plaintiffs are likely to prevail on their first and sixth claims, but deferred ruling

on the preliminary injunction pending further briefing from the parties, due May 6, 2013. See

Dkt. 58 at 1.

Proposed Defendant-Intervenors

Proposed Individual Defendant-Intervenors Pamela Reséndiz and Carolina Canizalez are

undocumented immigrants5 who have received deferred action and employment authorization

under the DHS Memorandum. Ex. C at ¶ 5; Ex. D at ¶ 7. Ms. Reséndiz has resided in the

United States since she was nine-years old. Ex. C at ¶ 2. She graduated from high school in

Rockwall, Texas and, thereafter, attended the University of Texas at San Antonio (“UTSA”)

after earning admission. See id. at ¶ 3. In 2012, she graduated with a Bachelor of Arts in

Political Science and Latin American Studies. See id. at ¶ 4. She currently works as a facilitator,

assisting at-risk students and parents, and resides in Travis County. See id. at ¶ 7.

Ms. Canizalez first came to the United States when she was ten-years old. Ex. D at ¶ 2.

She grew up in San Antonio, Texas. She graduated from Alamo Heights High School with a 4.0

4 The Court ) dismissed this claim without prejudice because Plaintiffs failed to allege sufficient injury to satisfystanding as to the issuance of employment authorization. See Dkt. 27 at 26.

5 The term “undocumented immigrants” is used to describe persons residing in the United States who do not haveauthorization by the U.S. government to reside in the United States.



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grade point average and later, from UTSA with Honors. See id. at ¶¶ 3, 6. She currently resides

in Bexar County, Texas, and works as a National Coordinator for United We Dream (“UWD”), a

national, nonpartisan, immigrant youth-led organization that advocates for the dignity and fair

treatment of immigrant youth and families, regardless of immigration status. See id. at ¶¶ 2, 3,

8.

Founded in 2005, ULI is a membership-based association and student organization of

UT-Austin. Ex. D at ¶ 4. ULI’s mission is to advance the educational attainment and civil rights

of undocumented immigrant youth. Ex. D at ¶ 10. ULI promotes higher education for

immigrant students; encourages civic participation among undocumented immigrant students insecondary schools; and conducts outreach at the local, state and national level to address

problems faced by undocumented immigrant students in college. See id. at ¶¶ 11-16.

ULI’s membership is comprised of college students currently attending UT-Austin. See

id . ULI’s members provide mentorship and support to undocumented immigrant students in

secondary schools. See id. at ¶ 3. Through these volunteer activities, ULI fulfills its

organizational mission to encourage young, undocumented immigrant students to succeed

academically, graduate from high school, and attend institutions of higher education. See id .

Many undocumented immigrant student members of ULI have either received, or are eligible for,

deferred action under the DHS Memorandum, and require deferred action so that they can

continue to pursue higher education without the threat of deportation interfering with their

studies. See id. at ¶ 18. Moreover, eligible student members rely on income earned through

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

Preserving the ability of undocumented immigrant students to pursue higher education is

vital to the organizational mission, goals and objectives of ULI and is critical to ULI’s members’



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ability to attend school. See id. at ¶ 16. For this reason, ULI and its members have sponsored

and conducted educational forums and events to provide information to members on the deferred

action application process under the DHS Memorandum. See id.

Movants have a unique interest in the subject matter of this litigation that supports their

intervention. First, they have a personal interest in the continued implementation of the DHS

Memorandum because of the deferred action they receive under the DHS Memorandum.

Second, an injunction would force Proposed Organizational Defendant-Intervenor to expend

additional resources educating members about the effect of the injunction on their applications

for deferred action, and would impair ULI’s members’ ability to achieve higher education andcivic participation. See id. at ¶ 20. As long as the DHS Memorandum remains in force, Movants

have the assurance from the federal government that they will not be deported, allowing them to

pursue educational opportunities and support themselves financially with work authorization.

See New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984)

(en banc) (finding that third persons who have an interest in a declaratory judgment action that is

“direct, substantial, and legally protectable” may be allowed to intervene in a declaratory

judgment action).

Proposed Defendant-Intervenors’ Requested Relief

As set forth below, Plaintiffs’ requested injunctive relief, if granted, is impermissibly

overbroad and would substantially impair the interests of Proposed Defendant-Intervenors.

Defendants’ attorneys cannot adequately represent Proposed Defendant-Intervenors’ interests

because they represent Defendants’ employers and, as demonstrated by the April 8 hearing on

Plaintiffs’ Application for Preliminary Injunction, they have an adverse interest in minimizing

Plaintiffs’ apparent wrongful enforcement of both 8 U.S.C. § 1225 and the DHS Memorandum.



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Allowing Movants to participate as intervenors will ensure that their interests are adequately

protected and will provide Movants the opportunity to present and cross-examine witnesses, and

offer other relevant evidence and argument that will assist the Court with rendering a decision in

this important case.

In the alternative, Proposed Defendant-Intervenors seek to participate as amici curiae to

assist the Court by providing the statutory analysis the Court requested but that the parties did

not present in preliminary injunction briefing or during the hearing. Dkt. 58 at 12; 4/8/13 Tr. at

154-55, 197:23-198:20. As amici curiae, Proposed Defendant-Intervenors would expound on

federal immigration law to explain why DACA-eligible individuals like Movants and Movants’members are exempt from 8 U.S.C. § 1225(b)(2)(A), and to demonstrate that the DHS

Memorandum does not confer a substantive benefit so as to trigger administrative rulemaking

requirements. See generally Ex. B.

Because Movants meet all the requirements for intervention under Rule 24(a)(2), they

respectfully request that their motion to intervene be granted, or in the alternative, that they be

permitted to participate as amici curiae.

ARGUMENT

I. INTERVENTION AS OF RIGHT IS WARRANTED

Rule 24(a) states:

On timely motion, the court must permit anyone to intervene who: (1) is given anunconditional right to intervene by a federal statute; or (2) claims an interestrelating to the property or transaction that is the subject of the action, and is sosituated that disposing of the action may as a practical matter impair or impedethe Movants’ ability to protect its interest, unless existing parties adequatelyrepresent that interest.

Fed. R. Civ. P. 24(a). To intervene as of right under Rule 24(a)(2), an applicant must meet four

requirements: (1) the motion to intervene is timely; (2) the potential intervener asserts an interest



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that is related to the basis of the controversy in the underlying case; (3) the disposition of the

case may impair or impede the potential intervenor's ability to protect his interest; and (4) the

existing parties do not adequately represent the potential intervenor's interests. See Saldano v.

Roach, 363 F.3d 545, 551 (5th Cir. 2004).

The Fifth Circuit has construed Rule 24(a) broadly in favor of intervenors. See John Doe

No. 1 v. Glickman, 256 F.3d 371, 375 (5th Cir. 2001). “[T]he inquiry under subsection (a)(2) is a

flexible one, which focuses on the particular facts and circumstances surrounding each

application.” Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996). “[I]ntervention of

right must be measured by a practical rather than technical yardstick.” See id. at 999 (quotationomitted). Accordingly, courts, as a general matter, allow intervention where “no one would be

hurt and greater justice could be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.

1994) (citing Glickman, 256 F.3d at 375) (internal quotation marks omitted).

A. Movants’ Motion to Intervene is Timely.

In determining whether a motion for intervention is timely under Fed. R. Civ. P. 24(a)(2),

the Court should consider: 1) the length of time between the potential intervenor's learning that

its interest is no longer protected by the existing parties and its motion to intervene, (2) the extent

of prejudice to the existing parties from allowing late intervention, (3) the extent of prejudice to

the potential intervenor if the motion is denied, and (4) any unusual circumstances. See

Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir. 1977); In re Lease Oil Antitrust

Litig., 570 F.3d 244, 247-48 (5th Cir. 2009).

The length of time from which timeliness is defined is broad and not exact or precisely

measureable. See Stallworth, 558 F.2d at 263 (quotation omitted). Timeliness is favored when a

motion is filed prior to entry of judgment “as most . . . case law rejecting petitions for



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intervention as untimely concern motions filed after” a judgment is rendered. Edwards, 78 F.3d

at 1001.

“The timeliness clock runs. . . from the time [Movants] became aware that [their]

interests would no longer be protected by the existing parties to the lawsuit.” Edwards, 78 F.3d

at 1000 (quotations and citations omitted). As Defendant Napolitano issued the DHS

Memorandum, Movants had no reason to doubt that Defendants would fully protect their

interests under the Memorandum when Plaintiffs filed this lawsuit in August of 2012. The

earliest date that Movants could have known that their interests would not be protected by

existing parties was April 8, 2013, the date of the preliminary injunction hearing. During thehearing, Plaintiffs’ counsel frequently elicited testimony, without objection from Defendants’

counsel, from all three witnesses that was misleading and/or incorrect, speculative, lacked

foundation, or constituted hearsay. For example, Plaintiffs’ witnesses consistently inferred that

the DHS Memorandum only applies to individuals who have not been admitted, and therefore,

all DACA-eligible individuals trigger 8 U.S.C. § 1225(a). This is incorrect. Not all DACA-

eligible applicants arrived in the United States without lawful admission.6 Without counter

testimony or evidence, however, the Court had little choice but to accept Plaintiffs’

interpretation. Dkt. 58 at 10 (“By the Directive’s terms, any Directive-eligible alien would be

one “who has not been admitted” and is therefore deemed an “applicant for admission” for

purposes of Section 1225.”).

6 Eligible applicants may have entered without inspection or have expired immigration status prior to June 15, 2012.“Instructions for Consideration of Deferred Action for Childhood Arrivals” USCIS form I-821D, Ex. F at 1. Forexample, Proposed Defendant-Intervenor Canizalez overstayed a validly-issued visa and was previously inspectedupon arrival. Ex. D at ¶ 2. Before the DHS Memorandum, had Plaintiffs encountered her, she would not have beenan “applicant for admission” under 8 U.S.C. § 1225(a), because she was admitted.



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As another example, Plaintiff Martin testified that all immigrant detainees in El Paso are

now “training” each other to “assert DACA” in the jails and detention centers where they are

being held. 4/8/13 Tr. at 50-51. He stated that when a detainee volunteers that they are eligible

for “Dream Act,” enforcement officers continue asking eligibility questions. 4/8/13 Tr. at 50:14-

20. He further testified that even if an individual is dangerous, he has “to release him out to the

street.” 4/8/13 Tr. at 51:9-10.7 The DHS Memorandum states explicitly that Plaintiffs should

not consider an individual “for an exercise of prosecutorial discretion” if he poses a threat to

public safety. Dkt. 15, App. A at 1. Movants could not have anticipated that Defendants, who

are federal government officials, would fail to present government witnesses to counterPlaintiffs’ testimony about their apparent wrongful enforcement of the DHS Memorandum, and

who could explain the proper implementation of the DHS Memorandum on the ground.

Similarly, Movants could not have anticipated that Plaintiffs were raising an “as applied”

challenge to the DHS Memorandum, because they did not plead an “as applied” claim in their

Amended Complaint.

Even if the Court finds that the parties’ briefing provided reasonable notice to Movants,

the earliest that Movants could have known that Defendants were not protecting their interests

was December 19, 2012, the date Defendants filed their Response to Plaintiffs’ Application for

Preliminary Injunction. (Dkt. 34). The Fifth Circuit has found that a five-month lapse is not

unreasonable. See Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318, 320-21

(5th Cir. 1986).8

7 Plaintiff Martin also estimated that a quarter of the detainees he intakes are released because of DACA. See 4/8/13Tr. at 52:15-19. This testimony lacked foundation and came from an enforcement agent who could not possiblyhave had access to those numbers, especially based on previous testimony from Plaintiff Crane that “all offices aredeleting records” of individuals released. Id. at 97-98.

8 Proposed Defendant-Intervenors ordered a transcript of the hearing on April 9, 2013, and received the hearingtranscript on April 29, 2013, less than a week from the date of this filing.



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Regarding the second timeliness factor, Movants’ intervention will not cause prejudice to

the existing parties. See Ford v. City of Hunstville, 242 F.3d 235, 240 (5th Cir. 2001) (finding

that prejudice is only created by “the intervenor’s delay in seeking to intervene after it learns of

its interest”) (citing Ceres Gulf v. Cooper , 957 F.2d 1199, 1203 (5th Cir. 1992)); see also

Stallworth, 558 F.2d at 265 (“[T]he prejudice to the original parties to the litigation that is

relevant to the question of timeliness is only that prejudice which would result from the would-

be intervenor’s failure to request intervention as soon as he knew or reasonably should have

known about his interest in the action”). As stated above, Intervenors only recently learned of

how their interest is not being protected. And although the Court has conducted the preliminaryinjunction hearing, the Court has not entered its final ruling on the matter nor its Scheduling

Order in this case, and the parties have not conducted any discovery or depositions. Neither

Plaintiffs nor Defendants would be prejudiced by the timing of Movants’ intervention.

On the other hand, Movant and its members would be severely prejudiced if this Court

denies this motion to intervene. In Stallworth, the Fifth Circuit framed the question of prejudice

against proposed intervenors who are denied intervention in terms of whether “a [Rule 24]

section (a) intervenor ‘may be seriously harmed if he is not permitted to intervene.’” 558 F.2d at

266 (quotation ommitted). In this case, distinct from Defendants, Movants and Movants’

members, as undocumented immigrants, have a direct, personal (and financial) stake in the

outcome of this case. The Court indicated that it is inclined to grant Plaintiffs’ requested

injunctive relief and enjoin the enforcement and implementation of the DHS Memorandum in its

entirety. Dkt. 58 at 1. If the Court enjoins the implementation of the DHS Memorandum,

Proposed Individual Defendant-Intervenors will fall out of deferred action status and will lose

work authorization, which will in turn risk their employment. Proposed Organizational



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Defendant-Intervenor’s members will similarly not be eligible for deferred action or work

authorization, and will lose the opportunity for financial support from work authorization. In

addition, Organizational Defendant-Intervenor’s education efforts and mentoring work with

undocumented immigrant students in secondary schools will be profoundly affected by having to

shift limited resources to address this substantial change in practice.

As nonparties, Movants will be affected by any court-ordered remedy, but will not be

able to participate in presenting evidence and argument in support of their defenses or to appeal

the ruling. See Edwards, 78 F.3d at 1002–03; see also Lease Oil Antitrust Litig., 570 F.3d at

249–50 (“Intervening in the existing federal lawsuit is the most efficient, and most certain, wayfor [the potential intervenor] to pursue its claim.”). Without the ability to intervene, Movants

will be relegated to the sidelines in a case in which their interests will be represented and

determined by other parties.

As the targets of Plaintiffs’ lawsuit, Movants’ members respectfully urge the Court to

grant them an opportunity to present their case and protect their interests as undocumented

immigrants. Considering each of the factors above, Movants’ intervention is timely because: (1)

Movant promptly filed this motion; (2) the existing parties will not be prejudiced if the Court

permits intervention at this juncture; and (3) Movants’ members will be greatly harmed if this

motion is denied because they will not be able to protect their interests before the Court.

B. Movants Seek to Vindicate a Protectable Interest

Movants also satisfy the requirements of Rule 24(a)(2) because they have a protectable

interest in the subject matter of this litigation that would be otherwise impaired by an adverse

decision. Movants’ protected interest does not have “to be of a legal nature identical to that of

the claims asserted in the main action.” Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.



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1970). Indeed, “[a]ll that is required by the terms of the rule is an interest in . . . [the] rights that

are at issue, provided the other elements of intervention are present.” Id.; see also Donaldson v.

United States, 400 U.S. 517, 531 (1971) (holding that Rule 24(a)(2) requires only “a significant

protectable interest”). Ultimately, “the interest ‘test’ is primarily a practical guide to disposing

of lawsuits by involving as many apparently concerned persons as is compatible with efficiency

and due process.” Ross v. Marshall, 426 F.3d 745, 757 (5th Cir. 2005).

Here, Proposed Individual Defendant-Intervenors’ interest is to maintain their deferred

action status and work authorization, and the opportunity to reapply for deferred action in two

years, which Movants would not otherwise have without the implementation of the DHSMemorandum. Proposed Organizational Defendant-Intervenor seeks the same for its members,

as well as the ability to apply for deferred action for its members who have not yet applied.

Movants’ interest is therefore sufficient under Diaz.

Courts have routinely granted intervention to parties seeking to protect their interests in

government programs that affect them. For example, in Kansas, a federal district court allowed

students and Latino organizations to intervene in a case concerning a challenge to state

legislation that made undocumented immigrant students eligible for in-state tuition rates. See

Day v. Sebelius, 227 F.R.D. 668, 670 (D. Kan. 2005) (granting motion to intervene as defendants

filed by the Kansas League of United Latin American Citizens, the Hispanic American

Leadership Organization, and three college students). Similar to Day, where the proposed

intervenors accessed college in-state tuition rates pursuant to a state law challenged by the

plaintiffs, see id. at 673, Proposed Individual Defendant-Intervenors and Proposed

Organizational Defendant-Intervenor members are current undocumented immigrant students

who have a direct stake in the opportunity to apply for deferred action and work authorization



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under the DHS Memorandum. See also Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir.

1989) (detainees seeking to intervene as a matter of right in an action brought by a U.S. Senator

to challenge housing of alien felons at a particular facility had an interest relating to the main

suit).

Similarly, courts have held that persons affected by government programs had sufficient

interest in the action to meet the interest prerequisite for intervention. For example, in Lewis v

Stark , 312 F. Supp. 197 (N.D. Cal. 1978), rev’d on other grounds 397 US 552 (1980), the

plaintiffs sought a declaration that the state welfare law, which provided that a man assuming the

role of spouse in a home is bound to support children in the home, was unconstitutional andcontrary to federal regulations interpreting the Social Security Act. Id . at 199. The court held

that families with men assuming the role of spouse in the household were entitled to intervene as

of right under Rule 24(a). Id . In the same way, Movants here have shown strong and legally

cognizable interests related to the DHS Memorandum.

Furthermore, Movants stand to lose economic opportunities if the Court grants Plaintiffs’

request, because they would no longer have access to work authorization. In order to receive

work authorization, Movants had to demonstrate “economic necessity” by submitting an

application for employment authorization listing his or her “assets, income, and expenses as

evidence of his or her need to work.” 8 C.F.R. § 247 a.12(e); 45 C.F.R. § 1060. Courts have

held that economic interests, especially those that would “afford [movants] greater recompense

and satisfaction,” are a significant protectable interest. Usery v. Brandel, 87 F.R.D. 670, 676

(W.D. Mich. 1980); see also Decker v. United States Department of Labor, 473 F. Supp. 770

(E.D. Wis. 1979) (holding that a city archdiocese which received financial benefits from a

federal statute had a sufficient interest in the action to intervene as of right under Rule 24(a)(2)).



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Movants’ interests diverge from the broader interests that Defendants pursue:

Defendants are responsible for issuing and implementing the DHS Memorandum, but none of the

existing Defendants are or ever will be directly affected by the DHS Memorandum. Instead,

their interest in the DHS Memorandum is to “ensure that [DHS’s] enforcement resources are not

expended on [] low priority cases but are instead appropriately focused on people who meet our

enforcement priorities.” Dkt. 1 at 23. Therefore, Movants ask the Court to provide them the

opportunity to defend their own interests under the DHS Memorandum.

C. Movants’ Interests Would be Impaired if Intervention Were Denied.

Movants are “so situated that the disposition of the action may as a practical matterimpair or impede [its] ability to protect [its] interest.” Fed. R. Civ. P. 24(a)(2); Texas E.

Transmission Corp., 923 F.2d 410, 413 (5th Cir. 1991). Here, the advisory committee notes to

Rule 24(a) are instructive: “[i]f an absentee would be substantially affected in a practical sense

by the determination made in an action, he should, as a general rule, be entitled to intervene.”

Fed. R. Civ. P. 24 advisory committee’s note to 1966 Amendment. To demonstrate

“impairment,” a prospective intervenor “must show only that impairment of its substantial legal

interest is possible if intervention is denied.” Grutter v. Bollinger , 188 F.3d 394, 399 (6th Cir.

1999) (citing Mich. State AFL-CIO v. Miller , 103 F.3d 1240, 1247 (6th Cir. 1997)) (emphasis

added). This burden is minimal. See Grutter , 188 F.3d at 399 (rejecting the notion that Rule

24(a)(2) requires a specific legal or equitable interest).

There is no doubt that the relief Plaintiffs seek in this case – barring undocumented

immigrant youth from the opportunity to apply for deferred action status and work authorization

that they would not otherwise have access to – will effectively impair access to higher education



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and employment for Movants and Movants’ members, in addition to disrupting their current

college studies.

Movants should not be required to wait until the conclusion of the litigation to vindicate

their interests. Courts have recognized that parties seeking intervention would face a “practical

disadvantage” in asserting their rights once a court has rendered a decision. Chiles, 865 F.2d at

1214. The Fifth Circuit has recognized that a prospective intervenor’s interest may be practically

“impaired by the stare decisis effect” of a court’s rulings in subsequent proceedings. Sierra

Club, 18 F.3d at 1207 (quoting Ceres Gulf , 957 F.2d at 1204) (italics in original); see also

Martin v. Travelers Indem. Co., 450 F.2d 542, 554 (5th Cir. 1971) (“[S]tare decisis . . . wouldloom large” in any attempt by prospective intervenors “to achieve a favorable resolution of the

coverage issue” on their own.); Black Fire Fighters Ass’n of Dallas v. City of Dallas, 19 F.3d

992, 994 (5th Cir. 1994) (to the extent that a lawsuit involves common legal issues, potential

adverse effects on the prospective intervenors favor intervention). Therefore, Movants

respectfully request that the Court grant their motion for intervention at the earliest time possible

in order to protect their direct and substantial interests.

D. The Existing Defendants Will Not Adequately Represent Movants’ Interests

The burden under this prong is “satisfied if Movant shows that representation of his

interest ‘may be’ inadequate; and the burden of making that showing should be treated as

minimal.” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). Courts

have recognized that “[i]nadequate representation is most likely to be found when the applicant

asserts a personal interest that does not belong to the general public.” Forest Conservation

Council v. U.S. Forest Serv., 66 F.3d 1489, 1498 (9th Cir. 1995) (quoting 3B JAMES WM. MOORE

ET AL., MOORE’S FEDERAL PRACTICE ¶ 24.07[4] (2d ed. 1995)). Intervention is warranted when



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the proposed intervenors “occup[y] a different position and [have] different interests” than the

existing defendants. Sierra Club v. Fed. Emergency Mgmt. Agency, No. 07-0608, 2008 U.S.

Dist. LEXIS 47405, at *18-19 (S.D. Tex. June 11, 2008).

Courts have recognized that governmental representation of private, non-governmental

intervenors may be inadequate. For example, in Dimond v. District of Columbia, the court held

that because the government was responsible for representing a broad range of public interests

rather than the more narrow interests of intervenors, the “application for intervention . . . falls

squarely within the relatively large class of cases in this circuit recognizing the inadequacy of

governmental representation of the interests of private parties in certain circumstances.” 792F.2d 179, 192 (D.C. Cir. 1986); see Gen. Tel. Co. of the Nw., Inc. v. EEOC , 446 U.S. 318, 331

(1980) (granting individual aggrieved party’s motion to intervene in order to protect its personal

interests, which may at times be in conflict with those of the EEOC); see also Natural Res. Def.

Council v. Costle, 561 F.2d 904, 910-911 (D.C. Cir. 1977) (holding that the government does not

adequately represent private organizations because intervenors’ interests are different). Finally,

the burden is on those opposing the intervention to show that representation of Movants’

personal interests will be sufficient. See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER ,

FEDERAL PRACTICE AND PROCEDURE § 1909 (3d ed. 2007).

In this case, the different interests of Movants and Defendants demonstrate the need for

Movants’ participation. First, Defendants are Plaintiffs’ employers and have an interest in

protecting the image of their agencies and the competency of their employees. As shown, supra,

Plaintiff witnesses at the April 8 hearing indicated that they received instructions from

unidentified superiors to exercise favorable discretion and release detainees who posed a threat

to public safety, in direct contravention of the DHS Memorandum. See also 4/8/13 Tr. at 12. In



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addition, Plaintiff witnesses intimated that but for the DHS Memorandum, they would issue

Notices to Appear (NTAs) to DACA-eligible detainees under Section 1225, and in fact did so

routinely before receiving the Memorandum. See, e.g., 4/8/13 Tr. at 27:17-25. Such acts

actually violate Section 1225, however, because any detainee who is eligible for DACA would

also be eligible for an exemption under 8 U.S.C. § 1225(b)(2)(A).9 If these officers are acting on

instructions they receive from their superiors, Defendants have an incentive not to offer evidence

in order to avoid impeaching their own officers and/or tarnishing the image of the competency of

their offices.

In addition, if Plaintiffs are successful and obtain an injunction, Defendants will notexperience the severe and direct negative financial consequences, as well as living in constant

fear each day of being deported, imposed on Proposed Individual Defendant-Intervenors and

Organizational Defendant-Intervenor’s members. Defendants, on the other hand, have no direct

personal interest at stake. See, e.g., Day, 227 F.R.D. at 674 (“To the court’s knowledge, none of

these existing defendants are or ever will be personally impacted by [the in-state tuition law].”).

Instead, Defendants will be merely required not to implement the DHS Memorandum.

Defendants’ objectives and interests in the outcome of this case simply do not match Movants’

personal interest in defending and maintaining the DHS Memorandum.

9 The statutory section at issue includes an exception at 8 U.S.C. § 1225(b)(2)(B)(ii), providing that it is inapplicableto a person to whom 8 U.S.C. § 1225(b)(1) applies. In turn, 8 U.S.C. § 1225(b)(1) exempts from the description of

persons who shall be detained as persons who establish “to the satisfaction of the immigration officer, that. . .[s/he]has been physically present in the United States continuously for the 2-year period immediately prior to ‘theofficer’s determination of inadmissibility under [8 U.S.C. § 1225(b)(1)(A)].’ ” 8 U.S.C. § 1225(b)(1)(A)(iii). Underthis subsection, an ICE officer who is targeting a detainee must allow the detainee an opportunity to demonstrate therequisite two years of continuous presence that would exempt them from enforcement of the statute. To qualify forfavorable discretion under DACA, an applicant must show that s/he has continuously resided in the United States forat least five years preceding the date of the DACA directive. Accordingly, Plaintiffs will not suffer negativeemployment consequences for refraining from initiating proceedings against DACA-eligible detainees under Section1225, because those individuals are automatically exempted. Ironically, Plaintiffs are requesting an injunction sothat they can violate federal law, not comply with it.



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Furthermore, Movants request intervention because they would bear the greatest cost

under a favorable ruling for Plaintiffs. An unfavorable decision may certainly upset some of

Defendants’ stated objectives, but it would also alleviate some of the political pressures.10 Even

assuming Defendants’ best intentions, they may be hesitant to advance relevant arguments for

access to better opportunities for undocumented immigrants because it would expose them to

severe public scrutiny and criticism.

Defendants’ potential and actual failure to advance certain arguments is sufficient to

satisfy Movants’ minimal burden that Defendants’ representation “may be” inadequate.

Trbovich, 404 U.S. at 538 n.10. Movants’ interests are too divergent from the interests ofDefendants, and too vital for Movants, to be denied an active role as intervenor. See Day, 227

F.R.D. at 674 (granting intervention and recognizing direct and personal interests of

undocumented immigrant student in defending an in-state tuition law). For these reasons,

Movants seek to participate in this case as intervenors and respectfully request that the Court

grant them intervention as a matter of right.

II. MOVANTS ARE ENTITLED TO PERMISSIVE INTERVENTION.

Should the Court determine that Movants are not entitled to intervene as a matter of right,

Movants urge the Court to exercise its broad discretion and allow intervention under F ED. R. CIV.

P. Rule 24(b). Under Rule 24(b):

10

Some have criticized the Obama Administration for DACA, calling it “amnesty,” a backdoor “DREAM Act,” andan attempt to pander to the Latino community. See, e.g., Federation for American Immigration Reform (FAIR), Number of Backdoor Amnesty Beneficiaries Grows Drastically as Administration Rushes Application Process (Oct.15, 2012), available at http://www.fairus.org/legislative-updates/fair-legislative-update-october-15-2012;SmashPipe, Nightly News with David Jones, Yet Another Obama Deception (March 29, 2013), available at http://news.smashpipe.com/?f=AbNPG0yHgOE#play/AbNPG0yHgOE (portraying DACA as “deception” and“amnesty” program); NumberUSA, Over 50,000 Illegal Aliens Received Amnesty, Work Permits under Obama's DACA Program (Nov. 29, 2012), available at https://www.numbersusa.com/content/news/november-19-2012/over-50000-illegal-aliens-received-amnesty-work-permits-under-obamas-daca-prog (portraying DACA as an “amnesty”

program).



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On timely application, the court may permit anyone to intervenewho: (A) is given a conditional right to intervene by a federalstatute; or (B) has a claim or defense that shares with the mainaction a common question of law or fact. . . (3) In exercising itsdiscretion, the court must consider whether the intervention will

unduly delay or prejudice the adjudication of the original parties’rights.

Rule 24(b). Similar to the burden under Rule 24(a), permissive intervention is to be granted

liberally under Rule 24(b). See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL

PRACTICE AND PROCEDURE § 1904 (3d ed. 2007). “Permissive intervention is wholly

discretionary with the court . . . even though there is a common question of law or fact, or the

requirements of Rule 24(b) are otherwise satisfied.” New Orleans Pub. Serv., 732 F.2d at 470-471 (internal quotation marks and citation omitted). The Fifth Circuit has recognized that

permissive intervention may be granted in the Court’s discretion if: (1) the motion is timely; (2)

an applicant’s claim or defense has a question of law or fact in common with the existing action;

and (3) intervention will not delay or prejudice the adjudication of the rights of the original

parties. See Howse v. S/V , 641 F.2d 317, 320 n.4 (5th Cir. 1981); see also United States v.

LULAC , 793 F.2d 636, 644 (5th Cir. 1986) (“Although the court erred in granting intervention as

of right, it might have granted permissive intervention under Rule 24(b) because the intervenors

raise common questions of law and fact.”).

As a threshold matter, Movants’ motion to intervene is timely. See supra Section I.A.

Second, Movants’ defenses will share substantial questions of law and fact with the main action:

Movants seek to preserve access to the opportunity to apply for deferred action and work

authorization under the DHS Memorandum. Third, as discussed above, intervention will not

create delay or prejudice the existing parties. See id . Adding Movants as defendant-intervenors



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at this juncture of the lawsuit will not needlessly increase cost, delay disposition of the litigation,

or prejudice the existing parties.

Importantly, Movants’ participation in this lawsuit will offer evidence from the

perspective of undocumented immigrants, who are the real targets of this lawsuit and who have a

direct and personal stake in the outcome of this case. At a minimum, therefore, Movants ask the

Court to exercise its broad discretion and grant them permissive intervention.

III. MOVANTS ARE ENTITLED TO PARTICIPATE AS AMICUS CURIAE.

If the Court does not allow Movants to intervene, they respectfully request leave to

participate as amicus curiae in order to file the amicus brief attached as Exhibit B and to participate as amici throughout the remainder of this case. For the specific reasons set forth

supra, Part I, Movants have a vested interest in the outcome of this case under Local Rule 7.2.

CONCLUSION

For the foregoing reasons, Movants respectfully request that this Court grant their motion

to intervene, or in the alternative, grant them leave to participate as amicus curiae.



s/Marisa Bono__________

Marisa BonoState Bar No. 24052874David G. HinojosaState Bar No. 24010689 Nina PeralesState Bar No. 24005046110 Broadway, Ste. 300San Antonio, Texas 78205E-mail: [email protected] Telephone: (210) 224-5476Telecopier: (210) 224-5382



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Edward B. Cloutman IIIState Bar No. 04411000Edward B. Cloutman IV

State Bar No. 240740453301 Elm St.Dallas, TX 75226E-mail: [email protected] Telephone: (214) 939-9222Telecopier: (214) 939-9229

Attorneys for Proposed Defendant-Intervenors


I hereby certify that on May 6, 2013, I electronically filed the foregoing with the Clerk of

court by using the CM/ECF system which will send a notice of electronic filing to counsel of

record who are registered participants of the Courts CM/ECF system. I further certify that I

mailed the foregoing document and the notice of electronic filing by first-class mail to counsel of

record who are not CM/ECF participants as indicated in the notice of electronic filing.




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DALLAS DIVISION

CHRISTOPHER L. CRANE, DAVID A. )

ENGLE, ANASTASIA MARIE )CARROLL, RICARDO DIAZ, )LORENZO GARZA, FELIX )LUCIANO, TRE REBSTOCK, )FERNANDO SILVA, SAMUEL )MARTIN, and JAMES D. DOEBLER ) Civil Action No.

) 3:12CV32470Plaintiffs, )

)v. )

)

JANET NAPOLITANO, in her official )capacity as Secretary of Homeland )Security, JOHN MORTON, in his )official capacity as Director of )Immigration and Customs Enforcement, )And ALEJANDRO MAYORKAS, in his )Official capacity as Director of the United )States Citizenship and Immigration Services )

)Defendants, )

)and )

)PAMELA RESÉNDIZ, CAROLINA CANIZALEZ, )and the UNIVERSITY LEADERSHIP INITIATIVE )

)Proposed Defendant-Intervenors. )

APPENDIX TO PROPOSED DEFENDANT-INTERVENORS’

BRIEF AND MEMORANDUM OF LAW IN SUPPORT OF MOTION

TO INTERVENE AS DEFENDANTS OR IN THE ALTERNATIVE,

MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE

In compliance with Local Civil Rule 7.1(i), Plaintiffs submit this Appendix to

Reyes Plaintiffs Supplemental Response to Standing Arguments Raised by Defendant.

DESCRIPTION PAGE NO.

Exhibit A - Defendant-Intervenors’ Answer to Amended Complaintand Affirmative Defenses

Appx. 001-017



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DESCRIPTION PAGE NO.

Exhibit B - Brief of Pamela Resėndiz, Carolina Canizalez, and theUniversity Leadership Initiative as Amici Curiae in Support ofDefendants

Appx. 018-039

Exhibit C - Declaration of Pamela Resė

ndiz Appx. 040-044

Exhibit D - Declaration of Carolina Canizalez Appx. 045-049

Exhibit E - Declaration of Juana Guzman Appx. 050-055

Exhibit F - I-821D, Consideration of Deferred Action for ChildhoodArrivals

Appx. 056-062



s/Marisa Bono__________

Marisa BonoState Bar No. 24052874David G. HinojosaState Bar No. 24010689

Nina PeralesState Bar No. 24005046110 Broadway, Ste. 300San Antonio, Texas 78205E-mail: [email protected] Telephone: (210) 224-5476Telecopier: (210) 224-5382


Edward B. Cloutman III

State Bar No. 04411000Edward B. Cloutman IVState Bar No. 240740453301 Elm St.Dallas, TX 75226E-mail: [email protected] Telephone: (214) 939-9222Telecopier: (214) 939-9229



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Attorneys for Proposed Defendant-

Intervenors


I hereby certify that on May 6, 2013, I electronically filed the foregoing with the

Clerk of court by using the CM/ECF system which will send a notice of electronic filing

to counsel of record who are registered participants of the Courts CM/ECF system. I

further certify that I mailed the foregoing document and the notice of electronic filing by

first-class mail to counsel of record who are not CM/ECF participants as indicated in the

notice of electronic filing.




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EXHIBIT A

APPX.001



37/991


DALLAS DIVISION



)v. )


))

Defendants, ))

and ))


))

Defendant-Intervenors. ______ )

DEFENDANT-INTERVENORS’

ANSWER TO AMENDED COMPLAINT

AND AFFIRMATIVE DEFENSES

Pamela Reséndiz and Carolina Canizalez ( “Individual Defendant-Intervenors”), and the

University Leadership Initiative (“ULI” or “Organizational Defendant-Intervenor) (collectively,

APPX.002



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“Defendant-Intervenors”) by their undersigned counsel, hereby answer each of the numbered

paragraphs of the Amended Complaint filed by Plaintiffs in the above-styled action as follows:

ORIGINAL ANSWER

INTRODUCTION

1. Defendant-Intervenors lack knowledge or information sufficient to form a belief

about the truth of the allegations in paragraph 1.

2. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended

Complaint is a Directive, but otherwise admit the allegations in the first sentence of paragraph 2.

Defendant-Intervenors deny the allegations in the second and third sentences of paragraph 2.3. Defendant-Intervenors admit the allegations in paragraph 3, but only to the extent

that the requirements listed by Plaintiffs are only some of the criteria that should be satisfied

before an individual is considered for prosecutorial discretion. Defendant-Intervenors deny the

allegation in paragraph 3 that unlawfully present aliens are granted privileges under the

Directive.

4. Defendant-Intervenors deny the allegation in paragraph 4.

5. Defendant-Intervenors admit the allegation in paragraph 5 only to the extent that

Plaintiffs bring this civil action and seek injunctive relief. Defendant-Intervenors deny that

Plaintiffs are entitled to relief, and that the implementation of Appendix A attached to Plaintiffs’

Amended Complaint is unlawful and unconstitutional.

6. Defendant-Intervenors deny the allegations set forth in paragraph 6.



APPX.003



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THE PARTIES

Plaintiffs


about the truth of the allegations in paragraph 9. Defendant-Intervenors admit that ICE

Deportation Officers are authorized by law to arrest aliens for administrative immigration

violations or for any criminal offense against the United States and execute administrative and

criminal arrest warrants.


about the truth of the allegations in paragraph 10. Defendant-Intervenors admit that ICEImmigration Enforcement Agents are authorized by law to arrest aliens for administrative

immigration violations, arrest any persons for felonies regulating the admission or removal of

aliens, and execute administrative arrest warrants.



Immigration Enforcement Agents are authorized by law to arrest aliens for administrative








APPX.004



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4









immigration violations, arrest any persons for felonies regulating the admission or removal ofaliens, and execute administrative arrest warrants.














APPX.005



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5





Deportation Officers are authorized by law to arrest aliens for administrative immigration

violations or for any criminal offense against the United States and execute administrative and

criminal arrest warrants.

19. Defendant-Intervenors admit the allegations set forth in paragraph 19.

20. Defendant-Intervenors lack knowledge or information sufficient to form a beliefabout the truth of the allegations in paragraph 20.



Defendants

22.

Defendant-Intervenors admit the allegation in paragraph 22.

23.

Defendant-Intervenors admit the allegation in paragraph 23.

24. Defendant-Intervenors admit the allegation in the first sentence of paragraph 24.

Defendant-Intervenors lack knowledge or information sufficient to form a belief about the truth

of the allegations in the second sentence of paragraph 24.


Complaint was a Directive, but otherwise admit the allegations in paragraph 25.

JURISDICTION AND VENUE



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THE DIRECTIVE AND RELATED EVENTS



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


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


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

allegations in paragraph 31.32. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended

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

allegation in paragraph 32 to the extent that DHS began receiving applications for deferred

action and work authorization in relation to Appendix A attached to Plaintiffs’ Amended

Complaint on August 15, 2012.


Complaint is a Directive, or that it confers benefits. Defendant-Intervenors lack knowledge or

information sufficient to form a belief about the truth of the allegations in the first sentence of

paragraph 33. Defendant-Intervenors deny the allegations set forth in paragraph 33.


Complaint is a Directive. Defendant-Intervenors otherwise lack knowledge or information

sufficient to form a belief about the truth of the allegations in paragraph 34.



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36. Defendant-Intervenors admit the allegations in paragraph 36 to the extent that the

Department of Homeland Security has published estimates of unauthorized immigrants residing

in the United States on its website and otherwise deny the allegations.

FEDERAL STATUTORY BACKGROUND

37. Defendant-Intervenors admit that H.R. Rep. 104-725 (1996), at 383 states

“[I]mmigration law enforcement is as high a priority as other aspects of Federal law

enforcement, and illegal aliens do not have the right to remain in the United States undetected

and unapprehended.” Defendant-Intervenors otherwise deny the rest of the allegations in

paragraph 37.38. Defendant-Intervenors admit the allegations in paragraph 38.

39. Defendant-Intervenors admit the allegations in paragraph 39.

40. Defendant-Intervenors admit that 8 U.S.C. § 1225(b)(2)(A) states that “[s]ubject

to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the

examining immigration officer determines that an alien seeking admission is not clearly and

beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section

1229a of this title.” Defendant-Intervenors otherwise the allegations set forth in paragraph 49.

41. Defendant-Intervenors deny the allegations in the first and second sentences of

paragraph 41. Defendant-Intervenors deny that Appendix A attached to Plaintiffs’ Amended

Complaint is a Directive. Defendant-Intervenors lack knowledge or information sufficient to

form a belief about the truth of the remaining allegations in paragraph 41.

42. Defendant-Intervenors deny the allegations in paragraph 42.



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Documents

Obama Non-Deportation Policy Case — Crane v Napolitano - Motion to Intervene University Leadership Initiative