Full opinion text
MEMORANDUM & ORDER NICHOLAS G. GARAUFIS, United States District Judge. In 2012, the Department of Homeland Security created the Deferred Action for Childhood Arrivals (“DACA”) program. That program permitted certain individuals without lawful immigration status who entered the United States as children to obtain “deferred action” — contingent, discretionary relief from deportation — and authorization to work legally in this country. Since 2012, nearly 800,000 DACA recipients have relied on this program to work, study, and keep building lives in this country. On September 5, 2017, Defendants announced that they would gradually end the DACA program. (Letter from Jefferson B. Sessions .Ill to Elaine C. Duke- (Admin. R. (Dkt. 77-1) 251) (“Sessions Ltr.”); Mem. from Elaine C. Duke, Acting Sec’y, DHS, Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prose-cutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017) (Admin. R. 252) (“DACA Rescission Memo”).) The Department of Homeland Security (“DHS”) would consider pending DACA applications and renewal requests, as well as promptly filed renewal requests by DACA beneficiaries whose benefits were set to expire within six months, but would reject all other applications and renewal requests. (DÁCA Rescission Memo at 4.) Plaintiffs in the above-captioned' cases promptly challenged Defendants’ decision on a number of grounds, including, most relevant for purposes of this Memorandum and Order, that the decision violated the Administrative Procedure Act, 5. U.S.C. § 551 et seq. (the “APA”). (2d Am. Compl. (Dkt. 60)); Compl. (Dkt. l,.No. 17-CV-5228).) Plaintiffs now seek a preliminary injunction barring Deféndants from ending the DACA program pending a final adjudication of-these cases on the merits. (Mem. in Supp. of Mot. for Prelim. Inj. (Dkt. 123— 1) (“BV Pis. Mot.”); Mem. in Supp. of Mot. for Prelim. Irij. (Dkt, 96 — 1, No. 17-GV-5228) (“State Pis. Mot.”).) “Congress- passed the. [APA] to ensure that agencies follow constraints even as they exercise their powers. One of these constraints is the duty of agencies to find and formulate policies = that can -be justified by neutral principles.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 537, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (Kennedy, J., concurring in part and in the judgment). To that end, the APA authorizes parties harmed by federal agencies to obtain judicial review of agency decisions. 5 U.S.C. § 702. The reviewing court must set aside “action, findings, [or] conclusions” that are, .among o.ther things, “arbitrary, capricious, an abuse of discretion, or otherwise not .in accordance with law.” Id. § 706(2)(A). Review under this “arbitrary and capricious” standardes “narrow,” and the court may not “substitute its judgment for that of the agency,”; instead, the court considers only whether the agency’s decision “was the product of reasoned decision-making.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (“State Farm”). If the agency decision “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made,’ ” the court will uphold the agency’s decision. Id. at 43, 103 S.Ct. 2856 (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). If, however, the agency’s decision “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not. be ascribed to a difference in view or the product of agency expertise,” that decision must be set aside. Id. Review under the arbitrary-and-capricious standard is generally limited to the agency’s stated rationale for' its decision, State Farm, 463 U.S. at 43, 103 S.Ct. 2856; Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam), and to the “full administrative record that was before the [agency] at the time [it] made [its] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (“Overton Park”). The court “may not supply a reasoned basis for the agency’s action that the agency itself has not given.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1760, 91 L.Ed. 1995 (1947) (“Chenery II”)); SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 (L.Ed. 626 1943) (“Chenery I”). Nor may the court uphold agency action based on “post hoc rationalizations of agency action.” State Farm, 463 U.S. at 50, 103 S.Ct. 2856; see also Williams Gas Processing—Gulf Coast Co., L.P. v. FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004) (Roberts, J.) (“It is axiomatic that [the court] may uphold agency orders based only on reasoning that is fairly stated by the agency in the order under review; post hoc rationalizations by agency counsel will not suffice.” (internal quotation marks and citation omitted)). The APA thus sometimes places courts in the formalistic, even perverse, position of setting aside action that was clearly within the responsible agency’s authority, simply because the agency gave the wrong reasons for, or failed to adequately explain, its decision. E.g., State Farm, 463 U.S. at 42-43, 48-56, 103 S.Ct. 2856; Overton Park, 401 U.S. at 416, 420, 91 S.Ct. 814. Based on the present record, these appears to be just such cases. Defendants indisputably can end the DACA program. Nothing in the Constitution or the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (the “INA”), requires immigration authorities to grant deferred action or work authorization to individuals without lawful immigration status. The DACA program, like prior deferred-action and similar discretionary relief programs, simply reflected the Obama Administration’s determination that DHS’s limited enforcement resources generally should not be used to deport individuals who were brought to the United States as children, met educational or military-service requirements, and lacked meaningful criminal records. (Mem. from Janet Napol-itano, Sec’y, DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children at 1-2 (June 15, 2012) (Admin. R. 1-2) (the “2012 DACA Memo”).) New Administrations may, however, alter or abandon their predecessors’ policies, even if these policy shifts may impose staggering personal, social, and economic costs. The question before the court is thus not whether Defendants could end the DACA program, but whether they offered legally adequate reasons for doing so. Based on its review of the record before it, the court concludes that Defendants have not done so. First, the decision to end the DACA program appears to rest exclusively on a legal conclusion that the program was unconstitutional and violated the APA and INA. Because that conclusion was erroneous, the decision to end the DACA program cannot stand. Second, this erroneous conclusion appears to have relied in part on the plainly incorrect factual premise that courts have recognized “constitutional defects” in the somewhat analogous Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program. Third, Defendants’ decision appears to be internally contradictory, as the means by which Defendants chose to “wind down” the program (namely, by continuing to adjudicate certain DACA renewal applications) cannot be reconciled with their stated rationale for ending the program (namely, that DACA was unconstitutional). Any of these flaws would support invalidating the DACA rescission as arbitrary and capricious. ■ Before this court, Defendants have attempted to reframe their decision as motivated by “litigation risk.” They contend that the decision to end the DACA program was reasonable in light of the prospect that Texas and several other states would seek to amend their complaint in Texas v. United States, No. 14-CV-254 (S.D. Tex.), to challenge the DACA program; that the U.S. District Court for the Southern District of Texas would issue a nationwide injunction ending the program; and that the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court would affirm that injunction. (Defs. Opp’n to Pis. Mots, for Prelim. Inj. (Dkt. 239) at 1, 10-11, 21-24.) The Administrative Record does not support Defendants’ contention that they decided to end the DACA program for this reason. Even if it did, reliance on this “litigation risk” rationale would have been arbitrary and capricious, in light of Defendants’ failure to explain their decision or to consider any factors that might have weighed against ending the DACA program. And even if this “litigation risk” rationale were both supported by the Administrative Record and a reasonable basis for rescinding the 'DACA program, the court would nevertheless likely set Defendants’ decision aside, as the court cannot say that any of the aforementioned errors were harmless, for purposes of review under the APA. Accordingly, the court concludes that Plaintiffs are likely to succeed on the merits of their substantive APA claims. Because Plaintiffs also satisfy the remaining requirements for the court to issue a preliminary injunction, the court ENJOINS Defendants from rescinding the DACA program, pending a decision on the merits of these cases. Defendants thus' must continue processing both initial DACA applications and DACA renewal requests under the same terms and conditions that applied before September 5, 2017, subject to the limitations described below. The scope of this preliminary injunction conforms to that previously issued by the U.S. District Court of the Northern District of California. See Order Denying Defendants’ Motion to Dismiss for Lack of Subject-Matter Jurisdiction and Granting Provisional Relief (Dkt. 234), Regents of the Univ. of Calif. v. U.S. Dep’t of Homeland Sec., No. 3:17-CV-5211, 279 F.Supp.3d 1011, 2018 WL 339144 (N.D. Cal. Jan. 9, 2018) (“Regents”) (Alsup, J.), pet. for cert. before judgment filed, No. 17-1003. The court makes clear, however, what this order is not. • This order does not hold that the rescission of DACA was unlawful. ' That question is for summary judgment, not motions for a preliminary injunction. Cf. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1963) (“[A] preliminary injunction ... is, by its very nature, interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness.”). • This order does not hold that Defendants may not rescind the DACA program. Even if the court ultimately finds that Defendants’ stated rationale for ending the DACA program was legally deficient, the ordinary remedy is for the court to remand the decision to DHS for reconsideration. See Chenery I, 318 U.S. at 94-95, 63 S.Ct. 454. On remand, DHS “might later, in the exercise of its lawful discretion, reach the same result for a different reason.” FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). • This order does not require Defendants to grant any particular DACA applications or renewal requests. Restoring the DACA program to the status quo as of September 4, 2017, does not mean that every DACA recipient who requests renewal of his or her deferred action and work authorization will receive it. The DACA program identified “criteria [that] should be satisfied before an individual is considered for an exercise of prosecutorial discretion.” (2012 DACA Memo at 1.) It did not require immigration officials to defer action against any individuals who met these criteria; to the contrary, the 2012 DACA Memo stated that DHS would exercise prosecutorial discretion “on an individual basis” and would not “provide any assurance that relief will be granted in all cases.” (Id. at 2-3.) Preserving the status quo means only that Defendants must continue considering DACA applications and renewal requests, not that they must grant all such applications and requests. (See U.S. Citizenship & Immigration Servs., Frequently Asked Questions at Q6 (Apr. 25, 2017) (“Apr. 25 DACA FAQs”), Ex. 41 to State Pls. Mot. (Dkt. 97-2, No. 17-CV-5228) at ECF p.186.) • This order does not prevent Defers dants’ from revoking individual DACA recipients’ deferred action or work authorization. Under the 2012 DACA Memo, DHS may terminate a DACA recipient’s deferred action “at any time, with or without a Notice of Intent to Terminate, at [its] • discretion.” (Apr. 25 DACA FAQs at Q27.) Maintaining the status quo does nothing to alter that. Because the court issues the preliminary injunction requested by Plaintiffs, the Ba-talla Vidal Plaintiffs’ Motion for Class Certification (Dkt. 124) is DENIED as moot. The court will address by separate order Defendants’ motions to dismiss Plaintiffs’ operative complaints. (Defs. Mot. to Dismiss Third Am. Compl. (Dkt. 207); Defs. Mot. to Dismiss. (Dkt. 71, No. 17-CV-5228).) I. BACKGROUND The court provides á brief history of immigration authorities’ use of “deferred action” and similar discretionary-relief programs, the DACA and DAPA programs, and this litigation to offer context for the discussion that follows. For further background, the reader may consult this court’s prior orders (see Oct. 8, 2017, Order (Dkt. 72); Oct. 17, 2017, Mem. & Order (Dkt. 86); Oct. 19, 2017, Mem. & Order (Dkt. 90); Nov. 9, 2017, Mem. & Order (Dkt. 104); Nov. 20,2017, Order (Dkt. 109); Dec. 15, 2017, Order (Dkt. 122); Jan. 8, 2018, Mem. & Order (Dkt. 233)), the Northern District of California’s opinion in Regents, 279 F.Supp.3d at 1018—27, 2018 WL 339144, at *1-8, and the opinion of the Office of Legal Counsel regarding DAPA (see The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others, 38 Op. O.L.C. at 1 (2014) (Admin. R. 4) (“OLC Op.”)). A. History of Deferred Action “The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). That power derives from the Constitution, which authorizes Congress “[t]o establish a uniform Rule of Naturalization,” U.S. Const. art. I., § 8, cl. 4, and from the Government’s “inherent power as sovereign to control and conduct relations with foreign nations.” Arizona, 567 U.S. at 395, 132 S.Ct. 2492. Acting under this authority, the Government has created an “extensive and complex” statutory and regulatory regime governing, among other things, who may be admitted to the United States, who may work here, and who may be removed from the country. Id.; see id at 395-97, 132 S.Ct. 2492. Not all “removable” aliens are, in fact, deported from this country. Immigration officials “cannot act against each technical violation of the statute[s they' are] charged with enforcing,” but must determine which enforcement actio'ns aré worthwhile. Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Arpaio v. Obama, 797 F.3d 11, 15-16 (D.C. Cir. 2015). “A principal feature of the removal system is the broad discretion exercised by immigration officials,” who “as an initial matter, must decide whether -it makes sense to pursue removal at all,’’-and, “[i]f removal proceedings commence,” may decide whether removable . aliens warrant asylum or “other discretionary, relief allowing them to remain in the country or at least to leave without formal removal.” Arizona, 567 U.S. at 396, 132 S.Ct. 2492; see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (“AAADC”) (observing that throughout the removal process, immigration officials havp “discretion to abandon the. endeavor”). Immigration officials’ enforcement discretion is' a practical necessity as well as a legal reality: By one recent estimate, there are approximately 11.3 million undocumented aliens present in the United States, of whom DHS has the resources to remove fewer than 400,000 per year — about 3.5 percent of the total. (OLC Op. at 1.) Over the years, Congress and the Executive Branch have developed a. number of means by which immigration officials may exercise their discretion not to deport removable aliens. “Some of these discretionary powers have flowed from statute,” such, as “parole,” see 8 U.S.C. § 1182(d)(5)(A), and “temporary protected status,” see id. § 1254a. Regents, 279 F.Supp.3d at 1019, 2018 WL 339144, at *2; see also, e.g., 8 U.S.C. § 1229b (cancellation of removal); id. § 1229c (voluntary departure). Others, such as “deferred enforced departure” or “extended voluntary departure,” have been ad hoc exercises of executive authority, grounded in the Executive Branch’s responsibility for conducting foreign relations and enforcing immigration laws, rather than in express congressional authorization. Regents, 279 F.Supp.3d at 1019-20, 2018 WL 339144, at *2; OLC Op. at 12 & n.5. The cases before this court concern one such form of discretionary relief. “Deferred action” is a longstanding practice by which the Executive Branch exercises its discretion to abandon, or to decline to undertake, deportation proceedings “for humanitarian reasons or simply for its own convenience.” AAADC, 525 U.S. at 484, 119 S.Ct. 936; see also Arpaio, 797 F.3d at 16 (“‘[D]eferred action’ ... entails temporarily postponing the removal of individuals unlawfully present in the United States.”). By granting a removable alien deferred action, immigration officials convey that they do not currently'intend to remove that individual from the country. As such, deferred action offers the recipient some assurance — however non-binding, unenforceable, and contingent on the recipient’s continued good behavior — that he or she may remain, at least for now, in the United States. Additionally, recipients of deferred action may apply for authorization to work legally in the United States, provided that they “establish[] an economic necessity for employment.” 8 C.F.R. § 274a.-12(c)(14); see also 8 U.S.C. § 1324a(h)(3) (excluding from the definition of “unauthorized aliens,” who may not be knowingly employed in the United States, aliens “authorized to be ... employed ... by the Attorney General”). Deferred action does not, however, confer lawful immigration status, a pathway to citizenship, or a defense to removal, and is revocable by immigration authorities. United States v. Arrieta, 862 F.3d 512, 514 (5th Cir. 2017); Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1058 (9th Cir. 2014). (2012 DACA Memo at 3.) “Although the practice of granting deferred action ‘developed without express statutory authorization,’ it has become a regular feature of the immigration removal system that has been acknowledged by both Congress and the Supreme Court.” (OLC Op. at 13 (quoting AAADC, 525 U.S. at 484, 119 S.Ct. 936).) DHS and its predecessor, the Immigration and Naturalization Service, have employed deferred action and similar discretionary-relief programs, such as “nonpriority status” and “extended voluntary departure,” since at least the 1960s. Arpaio, 797 F.3d at 16 (citing OLC Op. at 7-8, 12-13). (Br. of Amicus Curiae Former Federal Immigration and Homeland Security Officials (Dkt. 198-1) (“Former Fed. Officials Amicus Br.”) at 6-11; Andorra Bruno et al., Cong. Res. Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, at 20-23 (July 13, 2012), https://edsource.org/wp-content/uploads/old/Deferred-Action-Congressional-Research-Service-Reportl. pdf (“CRS Rep.”).) These programs were used to provide relief to, among dozens of examples, refugees from war-torn and communist countries; spouses and children of aliens granted legal status under the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359; aliens eligible for relief under the Violence Against Women Act (“VAWA”) or the Victims of Trafficking and Violence Protection Act of 2000; foreign students affected by Hurricane Katrina; and certain widows and widowers of U.S. citizens. (OLC Op. at 14-17; Former Fed. Officials Amicus Br. at 8-10.) Congress has repeatedly ratified immigration officials’ practice of according deferred action to certain aliens without lawful immigration status. See, e.g., 8 U.S.C. § 1151 note (certain immediate family members of certain alien U.S. combat veterans are “eligible for deferred action, advance parole, and work authorization”); id. § 1154(a)(1)(D)(i)(II) (VAWA petitioners “eligible for deferred action and work authorization”); id § 1227(d)(2) (denial of administrative stay of removal “shall not preclude the alien' from applying for ... deferred action”); USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361 (certain immediate family members of lawful permanent residents killed in the terrorist attacks of September 11, 2001, “may be eligible for deferred action and work authorization”). B. DACA and DAPA On June 15, 2012, then-DHS Secretary Janet Napolitano issued the 2012 DACA Memo, which stated that DHS would consider granting deferred action to certain individuals without lawful immigration status who entered the United States as children. (2012 DACA Memo at 1.) Secretary Napolitano stated that DHS was implementing this program as an “exercise of prosecutorial discretion” in ' the enforcement of immigration laws, to “ensure that ... enforcement resources are not expended on ... low priority cases.” (Id.) Under the 2012 DACA Memo, individuals were eligible for consideration for deferred action if they (1) “came to the United States under the age of sixteen”; (2) had “continuously resided in the United States for a[t] least five years preceding the date of this memorandum and [were] present in the United States” on that date; (3) were “in school,” had “graduated from high school,” had obtained GEDs, or were honorably discharged veterans of the Armed Forces or Coast Guard; (4) had not been convicted of felonies, significant misdemeanors, or multiple misdemeanors, or been deemed to “otherwise pose[ ] a threat to national security or public safety”; and (5) were not above the age of thirty. (Id.) DACA applications from individuals meeting these criteria would be evaluated “on an individual” or “case-by-case” basis and would not necessarily be “granted in all cases.” (Id. at 2.) The 2012 DACA Memo “conferred] no substantive right, immigration status or pathway to citizenship.” (Id. at 2-3.) In late 2014, DHS announced the DAPA program, which would have granted, deferred action to certain parents of U.S. citizens and lawful permanent residents. (Mem, from Jeh Charles Johnson, Sec’y of DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children .and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014) (the “2014 DAPA Memo”) (Admin R. 40).) As part of that program, then-DHS Secretary Jeh Johnson directed U.S. Citizenship and Immigration Services (“USCIS”) “to establish a process, similar to DACA, for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis,” to certain individuals who, among other things, lacked formal immigration status and had a son or daughter who was a U.S. citizen or lawful permanent resident. (Id. at 1.) Secretary Johnson also announced that the DACA program would be expanded by (1) removing the requirement that DACA applicants be under the age of 30 as of June 2012; (2) extending the duration of the deferred action and work authorization obtained through the program from two to three years; and (3) adjusting the date-of-entry requirement to open DACA to' individuals brought to the United States between June 15, 2007, and January 1, 2010. (Id. at 3-4 (the “DAGA Expansion”).) C. The Texas Litigation Following DHS’s issuance of the 2014 DAPA Memo, Texas and 25 other states filed suit in the U.S. District Court for the Southern District of Texas, alleging that the DAPA program violated the APA and the Take, Care Clause of the U.S. Constitution, U.S. Const, art. II, § 3. See Texas v. United States, 86 F.Supp.3d 591, 598 (S.D. Tex. 2015). On February 16, 2015, after concluding that Texas and its fellow plaintiffs had standing to sue, Judge Andrew Hanen determined that they were likely to succeed on the merits of their claim that DAPA constituted a “legislative” or “substantive” rule that, under the APA, should have been made through notice-and-comment rulemaking procedures. Id. at 664-72. In particular, Judge Hanen found that the 2014 DAPA Memo, “[a]t a minimum, ... ‘severely restricted]’ any discretion that Defendants argue exists” in the adjudication of DAPA applications, and that DHS had not genuinely exercised discretion in' reviewing DACA applications) Id. at 669 & n.101. The court issued a nationwide injunction against the "implementation of both the DAPA program and the DACA Expansion. Id. at 677-78. The Fifth Circuit denied a stay of the preliminary injunction, 787 F.3d 733, 743 (5th Cir. 2015), and affirmed the district court op; two independent, alternative grounds, 809 F.3d 134, 178 (5th Cir. 2015) .(revised). First, the Fifth Circuit upheld the district court’s ruling that the plaintiff states were likely to prevail on the merits of their claim that the DAPA prograna was invalid because it was not developed through notice-and-comment rulemaking. See id. at 170-78. In particular, the Fifth Circuit found that Judge Hanen did not clearly err in finding that “[n]othing about DAPA genuinely leaves the agency and its [employees] free to exercise discretion,” based partly on evidence that supposedly showed that USCIS exercised little case-by-case discretion in adjudicating DACA applications. Id. at 172 (quoting 86 F.Supp.3d at 670 (alterations in original)); see id. at 172-78. Second, the Fifth Circuit concluded that the plaintiff states were likely to prevail on the merits of their claim that the DAPA program was substantively arbitrary and capricious because, in that court’s view, the program was contrary to the INA. See id. at 178-86. The Fifth Circuit observed that “Congress has enacted an intricate process for illegal, aliens to derive a lawful immigration classification from their children’s immigration status,” in the form of family-preference visas, id. at 179, and cancellation of removal and adjustment of status, id. at 180. While admitting that DAPA did not “confer the full panoply of benefits that a visa gives,” the Fifth Circuit held that DAPA nevertheless conflicted with these statutory forms of relief by permitting “illegal aliens to receive the benefits of lawful presence” without meeting the stringent requirements applicable to these provisions. See id. at 180. Similarly, the Fifth Circuit held that DAPA conflicted with the INA by providing an easier path to “lawful presence” and work authorization for approximately four million undocumented immigrants—a question of great national importance that Congress could not have intended to delegate implicitly to DHS. See id. at 180-81. The Fifth Circuit acknowledged that there was a long history of discretionary-relief programs but held that past practice was not dispoSitiye of DAPA’s legality and distinguished DAPA from past programs on the grounds that. such programs were “ ‘done on a country-specific basis, usually in response to war, civil unrest, or natural disasters,’ ” id. at 184 (quoting CRS Rep. at 9); used as a “bridge[ ■] from one legal status to another,” id.; or “interstitial to a statutory legalization scheme,” such as the Family Fairness program enacted by the Reagan and George H.W. Bush Administrations, id. at 185. Accordingly, “DAPA [wa]s foreclosed by Congress’s careful plan... and therefore was properly enjoined.” Id. at 186. The Supreme Court granted the Government’s petition for a writ of certiorari, — U.S. -, 136 S.Ct. 906, 193 L.Ed.2d 788 (2016), and affirmed the decision of the Fifth Circuit by an equally divided court, 136 S.Ct. 2271 (Mem.). D. The DACA Rescission On January 25, 2017, the newly inaugurated President Donald Trump issued an executive order stating that “[i]t is the policy of the executive branch to ... [e]n-sure the faithful execution of the immigration laws of the United States,” and that “[w]e cannot faithfully execute the immigration laws of the United. States if we exempt classes or .categories of removable aliens from potential enforcement.” Exec. Order 13,768, Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), 82 Fed. Reg. 8799. Shortly thereafter, then-DHS Secretary John.F. Kelly issued a .memorandum implementing this executive order by rescinding “all existing conflicting directives, memoranda, or field guidance regarding enforcement of our immigration laws and priorities for removal,” except for the DACA and DAPA programs, which he left in place. (Mem. from John F. Kelly, Sec’y, DHS, Enforcement of the Immigration Laws to Serve the National Interest at 2 (Feb. 20, 2017) (Admin. R. 230).) ' Four months later, Secretary Kelly issued another memorandum rescinding DAPA and the DACA Expansion in light of “the preliminary injunction in this matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities.” (Mem. from John F. Kelly, Sec’y, DHS, Rescission of November 20, 2014, Memorandum Providing for Deferred Action for Parents of Americans and- Lawful Permanent Residents (“DAPA”) at 3 (June 15, 2017) (Admin. R. 237).) This memo left the original DACA program in place and did not affect the remaining three-year grants of deferred action that were issued under the DACA Expansion prior to Judge Hanen’s issuance of a preliminary injunction in Texas. (Id. at 2 & n.3). Following the rescission of the 2014 DAPA Memo, Texas Attorney General Ken Paxton, joined- by the attorneys-general of ten other states, wrote to Attorney General Jefferson B. Sessions to insist that the Executive Branch rescind the 2012 DACA Memo. (Ltr.- from Ken' Paxton, Att’y Gen. of Tex., to Hon. Jeff Sessions, Att’y Gen. of the U^.S. (June 29, 2017) (Admin. R. 238).) Paxton threatened that if DHS did not stop issuing or renewing deferred action and work authorization under DACA or thé DACA Expansion, the plaintiff states would amend- their ’ complaint in the Texas litigation “to challenge both the DACA program and the remaining Expanded DACA permits.” (Id. at 2.) If, however, Defendants agreed to rescind the 2012 DACA Memo and to cease “renew[ing] or ,issu[ing] any new DACA or Expanded DACA permits in the future,” the plaintiffs would voluntarily dismiss their complaint. (Id.) On September 5, 2017, Defendants announced that the DACA program would be brought to a gradual end. In an undated letter (the “Sessions Letter”), the Attorney General wrote to then-Acting DHS Secretary Elaine C. Duke to “advise that. [DHS] should rescind” the 2012 DACA Memo. (Sessions Ltr.) The Attorney General opined that DACA was unlawful, unconstitutional, and likely to be invalidated in court: DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress’ 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. The related Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) policy was enjoined on a nationwide basis in a decision affirmed by the Fifth Circuit on the basis of multiple legal grounds and then by the Supreme Court by an equally divided vote. Then Secretary of Homeland Security John Kelly rescinded the DAPA policy in June. Because 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. (Id. (citation omitted).) Thereafter, Acting Secretary Duke issued a memorandum (the “DACA Rescission Memo”) instructing her subordinates to “execute a wind-down.of the program.” (DACA Rescission Memo at 1.) Acting Secretary Duke briefly summarized the creation of the DACA and DAPA programs and stated that, although the DACA program “purported to use deferred action— an act of prosecutorial discretion meant to be applied only on an individualized case-by-case basis,” “USCIS has not been able to identify specific denial cases where an applicant appeared to satisfy the programmatic categorical criteria as outlined in the [2012 DACA Memo] but still had his or her application denied based solely upon discretion.” (Id. at 2 & n.1.) Acting Secretary Duke then described the history of the Texas litigation, noting that the Fifth Circuit had affirmed the injunction against the implementation of the DAPA program based on the finding “that DACA decisions were not truly discretionary,” and observed that Secretary Kelly had acted to end categorical or class-based exemptions of aliens from potential enforcement of the immigration laws and to rescind the DAPA program while leaving the DACA program “temporarily ... in place.” (Id. at 2; see id. at 2-3.) The Acting Secretary then noted that Texas and several other states had threatened to challenge the DACA program, and she briefly summarized the Attorney General’s opinion that DACA was unconstitutional, unlawful, and likely to be struck down because it shared “the same legal and constitutional defects that the courts recognized as to DAPA.” (Id. at 3 (quoting Sessions Ltr.).) “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,” she concluded, “it is clear that the June 15, 2012, DACA program should be terminated.” (Id. at 4.) In light of “the complexities associated with winding down the'program,” however, Acting Secretary Duke directed that the program should be wound down gradually. (Id.) Initial applications, renewal requests, and associated applications for work authorization that had been “accepted” by DHS by September 5,2017, would be adjudicated “on an individual, case-by-case basis.” (Id.) Likewise, all DACA renewal requests and associated applications for work authorization submitted by “current beneficiaries whose benefits will expire between [September 5, 2017] and March 5, 2018,” would be adjudicated, provided that these requests were “accepted by [DHS] as of October 5, 2017.” (Id.) DHS would, however, “reject all DACA initial requests and associated applichtions for [work authorization] filed after the date of this memorandum” and “all DACA renewal requests and associated applications for [work authorization] filed outside of the[se] parameters.” (Id.) Existing DACA benefits would not be terminated immediately but would not be renewed, and DHS would no longer approve further applications for advance parole.” (Id.) E. Procedural History The court will not restate the procedural history of these cases prior to November 2017, which is set forth in the court’s November 9 Memorandum and Order. The court will, however, provide the following timeline of recent developments in these cases. On December 11, 2017, the Batalla Vidal Plaintiffs filed their Third Amended Complaint (Dkt. 113), which largely tracked their Second Amended Complaint but added a claim that Defendants Nielsen and Sessions violated the Due Process Clause of the Fifth Amendment by rejecting DACA renewal applications that (1) were promptly mailed but received by USCIS after October 5, 2017, due to U.S. Postal Service delays; (2) were delivered to US-CIS by October 5, 2017, but rejected because they arrived too late in the day; or (3). contained “minor perceived or actual clerical errors.” (Third Am. Compl. (Dkt. 113) ¶ 203; see id. ¶¶ 199-205.) On December 20, 2017, the Supreme Court vacated the decision of the U.S. Court of Appeals for the Ninth Circuit denying Defendants’ petition for a writ of mandamus to the. Northern District of California in similar litigation challenging Defendants’ decision to end the DACA program. In re United States, — U.S. —, 138 S.Ct. 443, 199 L.E.2d 351 (2017) (per curiam). The Supreme Court held that the “Government [has made] serious arguments that at least portions of the District Court’s order are overly broad” and that, “[u]nder the specific facts of [that] case,” the district court should have resolved the Government’s arguments that the decision to rescind the DACA program was not subject to judicial review before ordering the Government to produce a complete administrative record. Id. at 445. The Court suggested that the district court “may consider certifying that ruling for interlocutory appeal under 28 U.S.C. § 1292(b) if appropriate.” Id. at 445. One week later, the U.S. Court of Appeals for the Second Circuit denied Defendants’ petition for a writ of mandamus to this court and lifted its stay of record-related orders entered by this court and by Magistrate Judge .James Orenstein. (Dec. 27, 2017, USCA Order (Dkt. 210).) The Second Circuit rejected Defendants’ position that they could unilaterally determine which portions of the administrative record the court could consider, and determined that, in light of the “strong suggestion that the record before the [District Court] was not complete,” plaintiffs were entitled to discovery as to whether Defendants had produced a full administrative record. (Id. at 2 (quoting Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir. 1982)) (alteration in original).) Rejecting Defendants’ contention that compliance with this court’s and Judge Orenstenfs record-related orders would burden the Executive Branch, the Second Circuit noted that this court had repeatedly limited the scope of those orders, such that, as the Government conceded, “the number of documents, covered by the order, as modified, is approximately 20,000, a far smaller number than the Government’s papers led this court to believe.” (Id. at 3-4.) The Second Circuit distinguished In re United States on the grounds that this court had already considered and rejected Defendants’ jurisdictional arguments, clarified that the orders in question did not apply to White House documents, and limited the orders to apply to dramatically fewer, documents than were at issue in the . cases before the. Northern District of California. (Id. at 4-5.) . Defendants then moved for the court to certify its November 9 Memorandum and Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). (Mot. to Certify Order for Appeal (Dkt. 219).) They argued that certification would “materially advance the disposition of the litigation” by either “terminating] the litigation” or “clarifying] the rights of the parties” and “limiting the claims going forward in this litigation.” (Mem. in Supp. of Mot, to Certify Order for Appeal (Dkt. 219-1) at 14.) On January 8, 2018, the court' granted Defendants’ motion to certify the November 9 Memorandum and Order for interlocutory ‘ appeal because, among other things, there was “substantial ground for difference of opinion” on the question of whether the DACA rescission was commit-ted to agency discretion by law. (Jan. 8, 2018, Mem. & Order (Dkt. 233) at 4-6.) Defendants then argued that the court should delay an oral argument scheduled for January 18, 2018, pending the Second Circuit’s consideration of the interlocutory appeal, as “all (or at least most) of [the] district-court proceedings [regarding Defendants’ motions to dismiss, Plaintiffs’ motions for a preliminary injunction, and the Batalla Vidal Plaintiffs’ motion for class certification] will be unnecessary if the Second Circuit accepts some or all of the government’s arguments .on jurisdiction and justiciability.” (Defs. Jan. 11, 2018, Ltr. (Dkt. 236) at 1.) Before the Second Circuit, however, Defendants abruptly changed tack, agreeing with Plaintiffs “that holding the petition [for interlocutory appeal] in abeyance would be the most efficient course of action,” pending this court’s consideration of Defendants’ motion to dismiss and Plaintiffs’ motions for preliminary relief and class certification. (Reply in Supp. of Pet. for Permission to Appeal (Dkt. 28, Nielsen v. Vidal, No. 18-122 (2d Cir.)) at 2.) On January 9, 2018, the Northern District of California denied Defendants’ motion to.dismiss Regents and its companion cases and granted the plaintiffs a preliminary injunction. (Nov. 9, 2018, Order Denying FRCP 12(b)(1) Dismissal and Granting Provisional Relief (Dkt. 234, Regents).) Like this court, Judge William AIsup rejected Defendants’ contentions that the decision to end the DACA program was committed to agency discretion by law and that 8 U.S.C. § 1252(g) barred judicial review of that decision. (Id. at 18-23.) Judge AIsup further concluded that the plaintiffs were entitled to a preliminary injunction because they were likely to prevail on the merits of their claim that the decision to rescind the DACA program was substantively “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” because that decision “was based on a flawed legal premise” that the DACA program was illegal. (Id. at 29; see id. at 29-38.) Judge Alsup rejected Defendants’ argument that “DHS acted within its discretion in managing its litigation exposure in the Fifth Circuit, weighing its options, and deciding on an orderly wind down of the program so as- to avoid a potentially disastrous injunction in the Fifth Circuit” as a “classic post hoc rationalization” and, in any event, insufficient to support the decision to rescind the DACA program because Defendants had neither considered defenses to Texas’s potentially imminent suit nor weighed supposed litigation risks against “DACA’s programmatic objectives as well as the reliance interests of DACA recipients.” (Id. at 38-43.) II. LEGAL STANDARD “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the mov-ant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) (quoting 11A Charles A. Wright et al., Federal Practice and Procedure § 2948, at 130 (2d ed. 1995)) (emphasis omitted). A party “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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To establish a likelihood of success on the merits, the party seeking an injunction “need only make a showing that the probability of his prevailing is better than fifty percent.” Eng v. Smith, 849 F.2d 80, 82 (2d Cir. 1988); see also Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (“It is not enough that the chance of success on the merits be ‘better than negligible.”’ (quoting Sofinet v. INS, 188 F.3d 703, 707 (7th Cir. 1999))). When an injunction is “mandatory,” however — that is, when the injunction “alter[s] the status quo by commanding some positive act” — the movant must demonstrate a “clear” or “substantial” showing of likelihood of success. Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995). To obtain a mandatory injunction, a movant must also “make a strong showing of irreparable harm.” State of New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (internal quotation marks and citations omitted). III. DISCUSSION For the reasons that follow, Plaintiffs have demonstrated that they are entitled to a preliminary injunction against implementation of the DACA Rescission Memo. A. Likelihood of Success on the Merits First, Plaintiffs are substantially likely to succeed on the merits of their claim that Defendants’ decision to end the DACA program was substantively arbitrary and capricious. Plaintiffs contend that this decision violated APA § 706(2)(A) because, among other things, it was based on an erroneous legal conclusion that DACA was unlawful, failed to consider important aspects of the problem, and was internally contradictory. (BV Pis. Mot. at 11-20, 23-27; State Pis. Mot. at 5-13.) Defendants aver, however, that the decision reflects a reasonable assessment of litigation risk. (Defs. Opp’n at 1,10-13,15-24.) Based on the record before it, the court concludes that Plaintiffs, not Defendants, are substantially likely to be correct. 1. The Stated Rationale for Rescinding DACA Appears To Be Arbitrary and Capricious Plaintiffs have identified at least three respects in which Defendants’ decision to rescind the DACA program appears to be arbitrary, capricious, and an abuse of discretion. First, the decision rests on the erroneous legal conclusion that the DACA program is unlawful and unconstitutional. Second, the decision rests on the erroneous factual premise that courts have determined that the DACA program violates the Constitution. Third, the stated rationale for that decision is internally contradictory, as Defendants have continued to grant DACA renewal requests despite ending the DACA program on the grounds that it is, by their lights, unconstitutional. The court addresses each of these reasons in turn. a. The Decision Relies on the Legally Erroneous Premise that DACA Is Illegal An agency decision that is based on an erroneous legal premise cannot withstand arbitrary-and-capricious review. See 5 U.S.C. § 706(2)(A). It is well-established that when “[agency] 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, 63 S.Ct. 454. Accordingly, numerous courts have recognized that agency action based on a misconception of the applicable law is arbitrary and capricious in substance. See, e.g., Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 86-87 (2d Cir. 2006); Transitional Hosps. Corp. of La., Inc. v. Shalala, 222 F.3d 1019, 1029 (D.C. Cir. 2000) (Garland, J.); see also Planned Parenthood Fed. of Am., Inc. v. Heckler, 712 F.2d 650, 666 (D.C. Cir. 1983) (Bork, J., concurring in part and dissenting in part) (“If a regulation is based on an incorrect view of applicable law, the regulation cannot stand as promulgated .... ” (internal quotation marks and citation omitted)). That is no less true when an agency takes some action based on an erroneous view that the action is compelled by law, notwithstanding that the agency could have taken the same action on policy grounds. “An agency action, however permissible as an exercise of discretion, cannot be sustained Vhere it is based not on the agency’s own judgment but on an erroneous view of the law.’ ” Sea-Land Serv., Inc. v. Dep’t of Transp., 137 F.3d 640, 646 (D.C. Cir. 1998) (quoting Prill v. NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)). This rule is consistent with cases from outside the administrative-law context, which make clear that a decision based on “an erroneous view of the law” is “by definition” or “necessarily” an abuse of discretion. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). This rule also ensures that agencies are accountable for their decisions: If an agency makes a decision on policy grounds, it must say so, not act as if courts have tied its hands. The court therefore considers whether Defendants’ decision to rescind the DACA program relied on an erroneous view of the law. This review is de novo. 5 U.S.C. § 706; J. Andrew Lange, Inc. v. FAA, 208 F.3d 389, 391 (2d Cir. 2000). Fairly read, the Sessions Letter and DACA Rescission Memo indicate only that Defendants decided to end the DACA program because they believed that it was illegal. (While Defendants now argue that the decision was based on “litigation risk,” the record does-not support this contention, as the court explains below.) The DACA Rescission Memo offers no independent legal ¡reasoning as to why Defendants believed the DACA program to be unlawful so the court turns to the Sessions Letter. In that letter, the Attorney General offered two discernible bases for his opinion that the DACA program violated the law and should end: first, that it was unconstitutional, and second, that it “has the same legal and. constitutional defects that the courts' recognized as to DAPA.” (Sessions Ltr.) Neither conclusion is sustainable. i. The Attorney , General Erred in Concluding that DACA Is Unconstitutional As noted above, the Attorney General concluded that DACA was unconstitutional because it “was effectuated by the previous administration through executive action, without ’ proper statutory authority and with no • established end-date, after Congress’ repeated rejection of proposed législation that would have accomplished a similar result” and “an open-ended circumvention of immigration laws.” (Sessions Ltr.) This conclusory statement- does not support the proposition that DACA is unconstitutional. DACA is not unconstitutional simply because it was implemented by unilateral, executive action without express congressional authorization. The Executive Branch has wide discretion, not to initiate or pursue specific enforcement actions. Chaney, 470 U.S. at 831-32, 105 S.Ct. 1649. Immigration officials have particularly “broad discretion” in deciding whom to deport, deriving both, from the considerations specific to the Executive Branch in the foreign-policy arena, Arizona, 567 U.S. at 396, 132 S.Ct. 2492, and from the fact that far more removable aliens reside in this country than DHS has resources to deport, OLC Op. at 1; see also Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 510-19 (2009). Every modem presidential administration has relied on extra-statutory discretionary-relief programs to shield-certain removable aliens from deportation. Far from cabining this authority, Congress has amended the INA in ways that expressly acknowledge the Executive Branch’s power to decline to initiate removal proceedings against certain removable aliens. It thus cannot be the cáse that, by recognizing that certain removable aliens represented lower enforcement priorities than others, the DACA program violates the Constitution. Nor is DACA unconstitutional because it identified a certain category of removable aliens — individuals who were brought to the United States as children, lacked meaningful criminal histories, and had met educational or military-service requirements — as eligible for favorable treatment. The court is aware of no principled-reason why the Executive Branch may grant deferred action to particular immigrants but may not create a program by which individual immigrants who meet certain prescribed criteria are eligible to request deferred action. It is surely within DHS’s discretion to determine that certain categories of removable alien — felons and gang members, for example — are better uses of the agency’s limited enforcement resources than law-abiding individuals who entered the United States as children. Indeed, unless deferred-action decisions are to be entirely random, they necessarily must be based at least in part on “categorical” or “class-based” distinctions. See Arpaio v. Obama, 27 F.Supp.3d 185, 210 (D.D.C. 2014) (DAGA “helps to ensure that the exercise of deferred action is not arbitrary and capricious, as might be the case if the executive branch offered no guidance to enforcement officials. It would make little sense for a Court to strike down as arbitrary and capricious guidelines that-help ensure that the Nation’s immigration enforcement is not arbitrary but rather reflective of congressionally-directed priorities.”). The court cannot see how'the use of such distinctions to define eligibility for a deferred-action program transforms such a program from discretionary agency action into substantive lawmaking and (somehow) an encroachment on the separation of powers. Lastly, DACA is not unconstitutional because, as the Attorney General put it, that program was implemented “after Congress’ repeated rejection of proposed legislation that would have accomplished a similar result.” (Sessions Ltr.) The “proposed legislation” to which the Attorney General referred' would not have “accomplished a similar result” to DACA. The DREAM Act, in its many variations, would have offered its beneficiaries a formal immigration status and a pathway to lawful permanent residency. See, e.g., Development, Relief, and Education for Alien Minors Act of 2011, S. 952 (112th Cong.); Regents, 279 F.Supp.3d at 1040 n.15, 2018 WL 339144, at *20 n.15 (collecting proposed legislation). DACA, on the other hand,, offers only forbearance from deportation, along with work authorization, and does not provide an immigration status or a pathway to citizenship. (2012 DACA Memo at 4.) Even if the DREAM Act had offered benefits similar to those conveyed by DACA, it does not follow that Congress’s failure to enact a DREAM Act precluded the Executive Branch from enacting the DACA program. The court does, not see how executive action, taken either “pursuant to an express or implied authorization of Congress” or “in the absence of either a congressional grant or .denial of authority,” becomes unconstitutional simply because Congress has considered and failed to enact legislation that would accomplish similar ends. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). Fruitless congressional consideration of legislation is not itself law, see U.S. Const. art. I, § 7, cl. 2, and is an unconvincing basis for ascertaining the “implied will of Congress” to oust the President from acting in the space contemplated by the proposed but un-enacted legislation, see Youngstown Sheet & Tube, 343 U.S. at 637, 72 S.Ct. 863 (Jackson, J., concurring). It strikes the court as improbable that, if the President has some authority, any Member of Congress can divest the President of that authority by introducing unsuccessful legislation on the same subject." To the extent the'decision to end the DACA program was based on the Attorney General’s determination that the program is unconstitutional, that determination was legally erroneous, ánd the decision was therefore arbitrary and capricious. The court' does not address whether the DACA program might be unconstitutional on grounds other than those identified by the Attorney General, as any such grounds are not fairly before the court. ii. The Attorney General Erred in Concluding that DACA Has the “Same Legal, and Constitutional Defects that the Courts Recognized as to DAPA” Nor can the -Attorney .General’s determination that DACA is unlawful rest on the ground that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA.” (Sessions Ltr.) That rationale is arbitrary and capricious not only because it is premised on an' obvious factual mistake that courts had recognized “constitutional defects” in DAPA, as the court explains in the next subsection, but also because it is legally erroneous. The Southern District of Texas enjoined the implementation of the DAPA program on the grounds that DAPA was not promulgated through notice-and-comment rulemaking, and the Fifth Circuit affirmed, adding the additional ground for affirmance that DAPA was substantively arbitrary and capricious because it conflicted with the INA. The court is unpersuaded that either ground applies to DACA. (I) DACA Was Not a Legislative Rule. DACA does not appear to have been a “legislative” rule that was subject to notice-and-comment rulemaking. The APA generally requires agencies to make “rules” through notice-and-comment procedures, but provides an exception for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. § 553. The line between legislative rules (which are subject to notice and comment) and non-legislative rules (which are not) is not always clear. See Chrysler Corp. v. Brown, 441 U.S. 281, 301-03, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979); Noel v. Chapman, 508 F.2d 1023, 1029-30 (2d Cir. 1975) (characterizing this distinction as “enshrouded in considerable smog”). In general, however, “legislative rules are those that ‘create new law, rights, or duties, in what amounts tó a legislative act.’” Sweet v. Sheahan, 235 F.3d 80, 91 (2d Cir. 2000) (quoting White v. Shalala, 7 F.3d 296, 303 (2d Cir. 1993)). A rule is legislative if it creates a “binding- norm.” Bellarno Int’l Ltd. v. FDA, 678 F.Supp. 410, 412 (E.D.N.Y. 1988) (quoting Am. Bus Ass’n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980)). General statements of policy, on the other hand, do not “change ‘existing- rights and obligations’ ” of those regulated, but instead state the agency’s “general policy” or “are rules directed primarily at the staff of an agency describing how it will conduct agency discretionary functions.” Noel, 508 F.2d at 1030 (quoting Lewis-Mota v. Sec’y of Labor, 469 F.2d 478, 482 (2d Cir. 1972)) (internal quotation marks and additional citation omitted); see also Chrysler, 441 U.S. at 302 n.31, 99 S.Ct. 1705 (“General statements of policy are statements issued by an agency to advise the public prospectively of the manner in which the agency proposes to exercise a discretionary power.” (internal quotation marks and citation omitted)). On its face, the 2012 DACA Memo is plainly a “general statement of policy,” not a substantive rule. That memo described -how, as a matter of agency policy, DHS would exercise its prosecutorial discretion with respect to a discrete class of individuals without lawful immigration status, and directed DHS staff to implement procedures to facilitate that exercise of discretion. Most importantly, the memo stated that it created no substantive right, that all DACA applications would be adjudicated on an individualized basis, and that the agency retained discretion to deny or revoke deferred action or work authorization. Based on the text of the 2012 DACA Memo, the court cannot say that the creation of the DACA program either “imposed any rights and obligations” on DHS or the public, or did not “genuinely [leave] the agency and its decisionmakers free to exercise discretion.” Clarian Health W., LLC v. Hargan, 878 F.3d 346, 357 (D.C. Cir. 2017) (internal quotation marks and citation omitted). To determine whether a rule is properly classed as “legislative” or as a “general statement of policy,” some courts have also considered whether the agency has characterized or treated the rule as binding. Id. In determining that the DAPA program constituted a legislative rule, the Southern District of Texas focused on the purportedly binding effect that DAPA would have on the agency. Texas, 86 F.Supp.3d at 668-72. Judge Hanen reached that conclusion by determining that DACA had been implemented in such a way as to deprive agency employees of true discretion to evaluate DACA applications on a case-by-case basis, including that (1) the “