Full opinion text
Concurrence by Judge Owens WARDLAW, Circuit Judge: It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother's life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings. On the surface, Dulce Garcia appears no different from any other productive-indeed, inspiring-young American. But one thing sets her apart. Garcia's parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant. Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action-a revocable decision by the government not to deport an otherwise removable person from the country. DACA also allows recipients to apply for authorization to work in this country legally, paying taxes and operating in the above-ground economy. Garcia, along with hundreds of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity. But after a change in presidential administrations, in 2017 the government moved to end the DACA program. Why? According to the Acting Secretary of Homeland Security, upon the legal advice of the Attorney General, DACA was illegal from its inception, and therefore could no longer continue in effect. And after Dulce Garcia-along with other DACA recipients and affected states, municipalities, and organizations-challenged this conclusion in the federal courts, the government adopted the position that its fundamentally legal determination that DACA is unlawful is unreviewable by the judicial branch. With due respect for the Executive Branch, we disagree. The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose "province and duty" it is "to say what the law is." Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). The government's decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA-at least as justified on this record-is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court's grant of preliminary injunctive relief. I. A. History of Deferred Action The central benefit available under the DACA program is deferred action. Because much of this dispute revolves around the legitimacy of that practice, we begin by reviewing the Executive Branch's historical use of deferred action. The basic concept is a simple one: deferred action is a decision by Executive Branch officials not to pursue deportation proceedings against an individual or class of individuals otherwise eligible for removal from this country. See 6 Charles Gordon et al., Immigration Law & Procedure § 72.03[2][h] (2018) ("To ameliorate a harsh and unjust outcome, the immigration agency may decline to institute proceedings, may terminate proceedings, or may decline to execute a final order of deportation. This commendable exercise in administrative discretion ... is now designated as deferred action."); Barahona-Gomez v. Reno , 236 F.3d 1115, 1119 n.3 (9th Cir. 2001) ("Deferred action refers to an exercise of administrative discretion by the [immigration agency] under which [it] takes no action to proceed against an apparently deportable alien based on a prescribed set of factors generally related to humanitarian grounds." (internal quotation marks omitted) ); Hiroshi Motomura, Immigration Outside the Law 29 (2014) (noting that "deferred action is usually granted only for limited periods of time and does not provide a path to lawful permanent resident status or citizenship"). Unlike most other forms of relief from deportation, deferred action is not expressly grounded in statute. It arises instead from the Executive's inherent authority to allocate resources and prioritize cases. Cf. 6 U.S.C. § 202(5) (charging the Secretary of Homeland Security with "[e]stablishing national immigration enforcement policies and priorities"). As such, recipients of deferred action "enjoy no formal immigration status." Ariz. Dream Act Coal. v. Brewer , 855 F.3d 957, 964 (9th Cir. 2017) ( Brewer II ). But despite its non-statutory origins, Congress has historically recognized the existence of deferred action in amendments to the Immigration and Nationality Act (INA), as well as other statutory enactments. See 8 U.S.C. § 1227(d)(2) ("The denial of a request for an administrative stay of removal under this subsection shall not preclude the alien from applying for ... deferred action[.]"); REAL ID Act of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231, 313 (2005) (listing proof of "approved deferred action status" as sufficient "evidence of lawful status" for the issuance of a driver's license). The Supreme Court has also recognized deferred action by name, describing the Executive's "regular practice (which ha[s] come to be known as 'deferred action') of exercising discretion for humanitarian reasons or simply for its own convenience." Reno v. Am.-Arab Anti-Discrimination Comm. , 525 U.S. 471, 483-84, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ( AADC ). Thus, "it is well settled that the Secretary [of Homeland Security] can exercise deferred action." Brewer II , 855 F.3d at 967. Official records of administrative discretion in immigration enforcement date at least back to the turn of the twentieth century, not long after the enactment of the nation's first general immigration statute in 1882. See Act of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department of Justice circular regarding statutorily authorized denaturalization instructed that "as a general rule, good cause is not shown for the institution of proceedings ... unless some substantial results are to be achieved thereby in the way of betterment of the citizenship of the country." U.S. Dep't of Justice, Circular Letter No. 107 (Sept. 20, 1909) (quoted in Memorandum from Sam Bernsen, Gen. Counsel, INS, Legal Opinion Regarding Service Exercise of Prosecutorial Discretion at 4 (Jul. 15, 1976) (Bernsen Memorandum) ). The government's exercise of deferred action in particular first came to light in the 1970s, as a result of Freedom of Information Act litigation over the government's efforts to deport John Lennon and Yoko Ono, apparently based on Lennon's "British conviction for marijuana possession." Motomura, supra , at 28; see generally Shoba Sivaprasad Wadhia, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases 2-27 (2015). Then known as "nonpriority status," the practice had been observed in secret within the former Immigration and Naturalization Service (INS) since at least the 1950s, but INS officials had publicly denied its existence. See Leon Wildes, The Nonpriority Program of the Immigration and Naturalization Service Goes Public: The Litigative Use of the Freedom of Information Act , 14 San Diego L. Rev. 42, 52-53 (1976); Wadhia, supra , at 16. After the Lennon case revealed the practice, the INS issued its first public guidance on the use of deferred action, stating that "[i]n every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for nonpriority." Immigration and Naturalization Service, Operations Instructions § 103.1(a)(1)(ii) (1975) (quoted in Wadhia, supra , at 17). Although the 1975 guidance was rescinded in 1997, DHS officials continue to apply the same humanitarian factors in deciding whether to grant an individual deferred action. 6 Gordon et al., supra , § 72.03[2][h] & nn.133-34; see also AADC , 525 U.S. at 484 n.8, 119 S.Ct. 936. In addition to case-by-case adjudications, the Executive Branch has frequently applied deferred action and related forms of discretionary relief programmatically, to entire classes of otherwise removable noncitizens. Indeed, the Congressional Research Service has compiled a list of twenty-one such "administrative directives on blanket or categorical deferrals of deportation" issued between 1976 and 2011. Andorra Bruno et al., Cong. Research Serv., Analysis of June 15, 2012 DHS Memorandum, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children 20-23 (July 13, 2012); see also id. at 9 ("The executive branch has provided blanket or categorical deferrals of deportation numerous times over the years."). To take one early example, in 1956 President Eisenhower extended immigration parole to over thirty thousand Hungarian refugees who were otherwise unable to immigrate to the United States because of restrictive quotas then in existence. See White House Statement on the Termination of the Emergency Program for Hungarian Refugees (Dec. 28, 1957). The power to parole-that is, to allow a noncitizen physically to enter the country, while treating that person as "at the border" for purposes of immigration law-is established by statute, but the version of the INA in existence when President Eisenhower acted did not explicitly authorize programmatic exercises of the parole power. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188. See generally 6 Gordon et al., supra , § 62.01. Subsequent presidents made use of similar categorical parole initiatives. Wadhia, supra , at 30. Another salient example is the Family Fairness program, established by the Reagan Administration and expanded under President George H.W. Bush. The Immigration Reform and Control Act of 1986 (IRCA) had provided a pathway to legal status for hundreds of thousands of undocumented noncitizens, but did not make any provision for their close relatives unless those individuals separately qualified under the Act's criteria. See generally 3 Gordon et al., supra , § 38.06. President Reagan's INS Commissioner interpreted IRCA not to authorize immigration benefits for anyone outside the statutory criteria, but nevertheless exercised executive discretion to defer the deportation of the minor children of noncitizens legalized under the statute. Alan C. Nelson, Comm'r, INS, Legalization & Family Fairness: An Analysis (Oct. 21, 1987). And in 1990, the INS instituted "significant liberalizations" of the policy by granting one-year periods of extended voluntary departure to children and spouses of individuals legalized under IRCA who could establish admissibility, continuous residency, and a clean criminal record. INS Reverses Family Fairness Policy , 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990) ; see also 3 Gordon et al., supra , § 38.06. Contemporary estimates by INS officials of the number of people potentially eligible ranged as high as 1.5 million. See Immigration Act of 1989 (Part 2): Hearings Before the Subcomm. on Immigration, Refugees & Int'l Law of the H. Comm. on the Judiciary , 101st Cong. 49, 56 (1990) (testimony of Gene McNary, Comm'r, INS). Extended voluntary departure, the mechanism through which these individuals were allowed to remain in the United States is, like deferred action, a creature of executive discretion not specifically authorized by statute. See Hotel & Rest. Emps. Union, Local 25 v. Smith , 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (opinion of Mikva, J.). Since then, the immigration agency has instituted categorical deferred action programs for self-petitioners under the Violence Against Women Act; applicants for T and U visas (which are issued to victims of human trafficking and of certain crimes, respectively); foreign students unable to fulfill their visa requirements after Hurricane Katrina; and widowed spouses of United States citizens who had been married less than two years. None of these deferred action programs was expressly authorized by statute at the time they were initiated. B. The DACA Program DACA was announced in a June 15, 2012, memorandum from Secretary of Homeland Security Janet Napolitano, entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children." Secretary Napolitano explained that the nation's immigration laws "are not designed ... to remove productive young people to countries where they may not have lived or even speak the language," especially where "many of these young people have already contributed to our country in significant ways," and, because they were brought here as children, "lacked the intent to violate the law." She therefore determined that "[p]rosecutorial discretion, which is used in so many other areas, is especially justified here." The Napolitano memorandum thus laid out the basic criteria of the DACA program, under which a noncitizen will be considered for a grant of deferred action if he or she: • came to the United States under the age of sixteen; • has continuously resided in the United States for at least five years preceding [June 15, 2012] and is present in the United States on [June 15, 2012]; • is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; • has not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, nor otherwise poses a threat to national security or public safety; and • is not above the age of thirty [on June 15, 2012]. DACA applicants must submit extensive personal information to DHS, along with fees totaling nearly $500. Applicants also submit to biometric screening in which they are photographed and fingerprinted, enabling extensive biographical and biometric background checks. If those checks come back clean, each application is then evaluated for approval by DHS personnel on a case-by-case basis. If approved into the DACA program, an applicant is granted a renewable two-year term of deferred action-again, "a form of prosecutorial discretion whereby the Department of Homeland Security declines to pursue the removal of a person unlawfully present in the United States." Brewer II , 855 F.3d at 967. In addition to the deferral of removal itself, pre-existing DHS regulations allow all deferred-action recipients to apply for employment authorization, enabling them to work legally and pay taxes. 8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch to authorize the employment of noncitizens); 8 C.F.R. § 274a.12(c)(14) (providing that "[a]n alien who has been granted deferred action" is eligible for work authorization upon a showing of "economic necessity for employment"). Indeed, "DACA recipients are required to apply for employment authorization, in keeping with the Executive's intention that DACA recipients remain 'productive' members of society." Ariz. Dream Act Coal. v. Brewer , 757 F.3d 1053, 1062 (9th Cir. 2014) ( Brewer I ) (emphasis in original). Finally, DHS does not consider deferred-action recipients, including those benefitting from DACA, to accrue "unlawful presence" for purposes of the INA's re-entry bars. 8 U.S.C. § 1182(a)(9)(B)(ii) ; see Brewer I , 757 F.3d at 1059. In an attempt to build on the success of the DACA program, in 2014 Secretary of Homeland Security Jeh Johnson issued a separate memorandum that both announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA by (1) removing the age cap, (2) extending the term of deferred-action and related work-authorization grants from two to three years, and (3) moving up the cutoff date by which an applicant must have been in the United States to January 1, 2010. Twenty-six states challenged this extension in federal court, arguing that DAPA is unconstitutional. All of the policies outlined in the Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. See United States v. Texas , --- U.S. ----, 136 S. Ct. 2271, 195 L.Ed.2d 638 (2016) ; Texas v. United States , 809 F.3d 134 (5th Cir. 2015) ; Texas v. United States , 86 F. Supp. 3d 591 (S.D. Tex. 2015) ; see also Neil v. Biggers , 409 U.S. 188, 192, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (affirmance by an equally divided court has no precedential value). The original DACA program remained in effect. In 2017, a new presidential administration took office, bringing with it a change in immigration policy. On February 20, 2017, then-Secretary of Homeland Security John Kelly issued a memorandum that set out the administration's new enforcement priorities, stating that "the Department no longer will exempt classes or categories of removable aliens from potential enforcement." However, the memorandum explicitly left DACA and DAPA in place. In a second memorandum issued June 15, 2017, after "consider[ing] a number of factors, including the preliminary injunction in the [ Texas ] matter, the ongoing litigation, the fact that DAPA never took effect, and our new immigration enforcement priorities," Secretary Kelly rescinded DAPA as an "exercise of [his] discretion." Then, on June 28, 2017, Texas Attorney General Ken Paxton wrote to United States Attorney General Jefferson B. Sessions III threatening that if the federal government did not rescind DACA by September 5, 2017, Paxton would amend the complaint in the Texas litigation to challenge DACA as well as DAPA. On September 4, 2017, the day before Paxton's deadline, Attorney General Sessions sent his own letter to Acting Secretary of Homeland Security Elaine Duke. The Attorney General's letter "advise[d] that the Department of Homeland Security ... should rescind" the DACA memorandum based on his legal opinion that the Department lacked statutory authority to have created DACA in the first place. He wrote: DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress'[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. The Attorney General further opined that "[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA." The very next day, following the Attorney General's directive, Acting Secretary Duke issued a memorandum rescinding DACA. The memorandum begins with a "Background" section that covers DACA, DAPA, the Texas litigation, Secretary Kelly's previous memoranda, Texas Attorney General Paxton's threat, and the Attorney General's letter. Then, in the section titled "Rescission of the June 15, 2012 DACA Memorandum," the Duke memorandum states: Taking into consideration the Supreme Court's and the Fifth Circuit's rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum. The Duke memorandum further states that although DHS would stop accepting initial DACA requests effective immediately, the agency would provide a one-month window in which renewal applications could be filed for current DACA beneficiaries whose benefits were set to expire before March 5, 2018. It also states that DHS would not terminate existing grants of deferred action under DACA "solely based on the directives in this memorandum." Thus, beginning on March 5, 2018, each DACA recipient's grant of deferred action would be allowed to expire at the end of its two-year term. As of September 4, 2017-the day before the rescission-approximately 689,800 individuals were enrolled in DACA. C. Procedural History The rescission of DACA instantly sparked litigation across the country, including the cases on appeal here. Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The complaints included claims that the rescission was arbitrary and capricious under the Administrative Procedure Act (APA); that it was a substantive rule requiring notice-and-comment rulemaking under the APA; that it violated the due process and equal protection rights protected by the U.S. Constitution; and that DHS was equitably estopped from using the information provided on DACA applications for enforcement purposes. The cases were consolidated before Judge William Alsup in the District Court for the Northern District of California and proceeded to litigation. On October 17, 2017, the district court ordered the government to complete the administrative record, holding that the record proffered by the government was incomplete in several respects. Seeking to avoid providing additional documents, the government filed a petition for mandamus. In arguing its mandamus petition, the government took the position that the legality of the rescission should stand or fall based solely on the reasons and the record already provided by the government. We denied the mandamus petition, stating that "the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded." In re United States , 875 F.3d 1200, 1206 (9th Cir. 2017) (footnotes omitted). The government next petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instead instructed the district court to rule on the government's threshold arguments challenging reviewability of its rescission decision before requiring the government to provide additional documents. In re United States , --- U.S. ----, 138 S. Ct. 443, 445, 199 L.Ed.2d 351 (2017). Thus, the administrative record in this case still consists of a scant 256 publicly available pages, roughly three-quarters of which are taken up by the three published judicial opinions from the Texas litigation. Returning to the district court, the government moved to dismiss the consolidated cases on jurisdictional grounds and for failure to state a claim, while the plaintiffs moved for a preliminary injunction. The district court granted the request for a nationwide preliminary injunction, holding that most of the plaintiffs had standing; that neither the APA nor the INA barred judicial review; and that plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary and capricious. The district court therefore entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients. In a separate order, the court partially granted and partially denied the government's motion to dismiss. The court dismissed plaintiffs' notice-and-comment and Regulatory Flexibility Act claims; a due process claim premised on an entitlement to deferred action; and the equitable estoppel claim. The court denied the motion as to plaintiffs' equal protection claim and a due process claim premised on an alleged change in DHS's information-sharing policy. The district court certified the issues addressed in both its orders for interlocutory review under 28 U.S.C. § 1292(b). We granted the government's petition for permission to appeal the orders. Plaintiffs cross-appealed, asserting that the district court erroneously dismissed their notice-and-comment and due process claims. II. "We review the district court's decision to grant or deny a preliminary injunction for abuse of discretion." Hernandez v. Sessions , 872 F.3d 976, 987 (9th Cir. 2017) (quoting Sw. Voter Registration Educ. Project v. Shelley , 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per curiam) ). Within this inquiry, "[w]e review the district court's legal conclusions de novo , the factual findings underlying its decision for clear error." Id. (quoting K.W. ex rel. D.W. v. Armstrong , 789 F.3d 962, 969 (9th Cir. 2015) ). A district court's decision on a motion to dismiss for lack of subject matter jurisdiction or for failure to state a claim is also reviewed de novo. See, e.g. , Davidson v. Kimberly-Clark Corp. , 889 F.3d 956, 963 (9th Cir. 2017). III. The threshold question in this case is in many ways also the most pivotal: is Acting Secretary Duke's decision to rescind the DACA program reviewable by the courts at all? The government contends that both the APA and the INA bar judicial review; we address each statute in turn. A. Reviewability under the APA The APA provides for broad judicial review of agency action: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Thus, as a general matter, the Supreme Court has consistently articulated "a 'strong presumption' favoring judicial review of administrative action." Mach Mining, LLC v. EEOC , --- U.S. ----, 135 S. Ct. 1645, 1651, 191 L.Ed.2d 607 (2015) (quoting Bowen v. Mich. Acad. of Family Physicians , 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) ); see also, e.g. , Lincoln v. Vigil , 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) ("[W]e have read the APA as embodying a 'basic presumption of judicial review.' ") (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). However, the APA also forecloses judicial review under its procedures to the extent that "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). "This is a very narrow exception" that comes into play only "in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park, Inc. v. Volpe , 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (internal quotation marks omitted), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ; see also Heckler v. Chaney , 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ("[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion."). In Heckler v. Chaney , the Supreme Court analyzed this exception in considering "the extent to which a decision of an administrative agency to exercise its 'discretion' not to undertake certain enforcement actions is subject to judicial review under the [APA]." 470 U.S. at 823, 105 S.Ct. 1649. In Chaney , the Commissioner of the Food and Drug Administration (FDA) declined to take investigatory and enforcement action against state prison officials' use of drugs, which had been FDA-approved for medical use, in human executions. Id. at 823-24, 105 S.Ct. 1649. A group of prisoners on death row had petitioned the FDA, arguing that using the drugs to execute humans was unlawful because they were only approved for medical use, and not for executions. Id. Responding to the petition, the Commissioner questioned whether the FDA had jurisdiction to prohibit the use of drugs in executions, but went on to conclude that even if the agency did have jurisdiction, it would "decline to exercise it under [the agency's] inherent discretion to" do so. Id. at 824, 105 S.Ct. 1649. The inmates then sued the FDA, attempting to invoke the APA's framework for judicial review. Id. at 825, 105 S.Ct. 1649. The Supreme Court held that the FDA Commissioner's discretionary decision not to enforce the Food, Drug, and Cosmetic Act against state prison officials was unreviewable under the APA. Chaney , 470 U.S. at 837-38, 105 S.Ct. 1649. The Court identified a pre-APA "tradition" under which "an agency's decision not to prosecute or enforce ... is a decision generally committed to an agency's absolute discretion," and concluded that "the Congress enacting the APA did not intend to alter that tradition." Id. at 831-32, 105 S.Ct. 1649. As the Court summed up its holding, "[t]he general exception to reviewability provided by § 701(a)(2) for action 'committed to agency discretion' remains a narrow one, but within that exception are included agency refusals to institute investigative or enforcement proceedings, unless Congress has indicated otherwise." Id. at 838, 105 S.Ct. 1649 (citation omitted). That is, the normal presumption in favor of judicial review is reversed when the agency action in question is a refusal to enforce the substantive law. Importantly for present purposes, the Court explicitly left open the question whether "a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction" might be reviewable notwithstanding this general rule. Chaney , 470 U.S. at 833 n.4, 105 S.Ct. 1649 ("[W]e express no opinion on whether such decisions would be unreviewable under § 701(a)(2)...."). This reservation makes perfect sense. It is one thing to read the APA's exception for "agency action [ ] committed to agency discretion by law" as including the Executive's discretionary decisions to decline enforcement, given a pre-existing legal tradition that had treated those decisions as unreviewable. It would be quite another to say that an agency's non -discretionary belief that it lacked the power to enforce the law was similarly "committed to agency discretion." 5 U.S.C. § 701(a)(2) ; see Chaney , 470 U.S. at 833 n.4, 105 S.Ct. 1649 ("[W]e note that in those situations [involving a belief that the agency lacked discretion,] the statute conferring authority on the agency might indicate that such decisions were not 'committed to agency discretion.' "). Several years after Chaney , our court directly addressed the question that the Supreme Court had left open. In Montana Air Chapter No. 29 v. Federal Labor Relations Authority , a union representing civilian Air National Guard employees filed an unfair labor practice charge against the National Guard Bureau, but the Federal Labor Relations Authority (FLRA) refused to issue a complaint. 898 F.2d 753, 755 (9th Cir. 1990). The opinion letters issued by FLRA's general counsel indicated that he had "determined, according to his interpretation of the statutes and regulations, that he lacked jurisdiction to issue an unfair labor practice complaint" under the circumstances. Id. at 757. Acknowledging Chaney 's rule that "[a]n agency's decision not to take enforcement action ... is presumed to be immune from judicial review," we noted that the Supreme Court had nevertheless "suggested that discretionary nonenforcement decisions may be reviewable when" the refusal to enforce is based on a supposed lack of jurisdiction. Id. at 756 (citing Chaney , 470 U.S. at 833 n.4, 105 S.Ct. 1649 ). We took the next logical step, holding that Chaney 's presumption of nonreviewability "may be overcome if the refusal is based solely on the erroneous belief that the agency lacks jurisdiction." Id. at 754. Because "the General Counsel's decision not to issue an unfair labor practice complaint was based on his belief that he lacked jurisdiction to issue such a complaint," we proceeded to "examine the General Counsel's statutory and regulatory interpretations to determine if his belief that he lacked jurisdiction was correct." Id. at 757. The final piece of the APA reviewability puzzle is the Supreme Court's decision in City of Arlington v. FCC , 569 U.S. 290, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). There, the Court was faced with the question whether an agency's determination of its own jurisdiction is entitled to the same deference as any other agency interpretation under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Writing for the Court, Justice Scalia explained in no uncertain terms that in the context of administrative agencies, "the distinction between 'jurisdictional' and 'nonjurisdictional' interpretations is a mirage." City of Arlington , 569 U.S. at 297, 133 S.Ct. 1863. With respect to courts, the jurisdictional/nonjurisdictional divide is a real and consequential one, because "[a] court's power to decide a case is independent of whether its decision is correct.... Put differently, a jurisdictionally proper but substantively incorrect judicial decision is not ultra vires." Id. But the same is not true with respect to agencies: "Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires." Id. Thus, the Court concluded, "[t]he reality, laid bare, is that there is no difference , insofar as the validity of agency action is concerned, between an agency's exceeding the scope of its authority (its 'jurisdiction') and its exceeding authorized application of authority that it unquestionably has." Id. at 299, 133 S.Ct. 1863 (emphasis in original). To summarize, Chaney holds that an agency's refusal to enforce the substantive law is presumptively unreviewable because that discretionary nonenforcement function is "committed to agency discretion" within the meaning of the APA. Montana Air builds upon the question left open by Chaney 's footnote four, explaining that a nonenforcement decision is reviewable notwithstanding Chaney if the decision was based solely on the agency's belief that it lacked jurisdiction to act. And City of Arlington teaches that there is no difference between an agency that lacks jurisdiction to take a certain action, and one that is barred by the substantive law from doing the same; the question "is always, simply, whether the agency has stayed within the bounds of its statutory authority." City of Arlington , 569 U.S. at 297, 133 S.Ct. 1863 (emphasis omitted). The rule that emerges is this: an agency's nonenforcement decision is outside the scope of the Chaney presumption-and is therefore presumptively reviewable-if it is based solely on a belief that the agency lacked the lawful authority to do otherwise. That is, where the agency's decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law, the APA's "committed to agency discretion" bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply. This rule is fully consistent with the Supreme Court's decision in ICC v. Brotherhood of Locomotive Engineers ( BLE ), which rejected the notion that "if the agency gives a 'reviewable' reason for otherwise unreviewable action, the action becomes reviewable." 482 U.S. 270, 283, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987). We have no quarrel with that statement in the abstract, but as applied it simply begs the question: is the agency action in question "otherwise unreviewable"? The BLE case concerned the reviewability of the Interstate Commerce Commission's denial of a motion to reopen proceedings on grounds of material error. Id. at 280, 107 S.Ct. 2360. The Supreme Court held that category of agency action presumptively unreviewable because it "perceive[d] ... a similar tradition of nonreviewability" to the one it had found in Chaney for nonenforcement decisions. Id. at 282, 107 S.Ct. 2360. In reaching its holding, the Court rejected an argument that there was nevertheless "law to apply"-and that therefore the action was not committed to agency discretion-as the agency's order had discussed the legal merits at length. Id. at 280-81, 107 S.Ct. 2360. What mattered was that the agency's "formal action" was one for which a tradition of nonreviewability was discernable, regardless of how the agency explained its action. Id. BLE thus stands for the proposition that if a particular type of agency action is presumptively unreviewable, the fact that the agency explains itself in terms that are judicially cognizable does not change the categorical rule. Fair enough. But the categorical rule announced in Chaney does not encompass nonenforcement decisions based solely on the agency's belief that it lacked power to take a particular course; instead, the Court explicitly declined to extend its rule to that situation. Chaney , 470 U.S. at 833 n.4, 105 S.Ct. 1649. And in Montana Air , we held that such decisions are reviewable. 898 F.2d at 754. BLE 's statement about "otherwise unreviewable" agency decisions, 482 U.S. at 283, 107 S.Ct. 2360, therefore has no application to the category of agency action at issue here. We believe the analysis laid out above follows necessarily from existing doctrine. And, just as importantly, this approach also promotes values fundamental to the administrative process. First, the Montana Air rule does not impermissibly encroach on executive discretion; to the contrary, it empowers the Executive. If an agency head is mistaken in her assessment that the law precludes one course of action, allowing the courts to disabuse her of that incorrect view of the law does not constrain discretion, but rather opens new vistas within which discretion can operate. That is, if an administrator chooses option A for the sole reason that she believes option B to be beyond her legal authority, a decision from the courts putting option B back on the table allows a reasoned, discretionary policy choice between the two courses of action. And if the agency's view of the law is instead confirmed by the courts, no injury to discretion results because the status quo is preserved. Moreover, allowing judicial review under these circumstances serves the critical function of promoting accountability within the Executive Branch-not accountability to the courts, but democratic accountability to the people. Accountability in this sense is fundamental to the legitimacy of the administrative system: although they are "unelected ... bureaucrats," City of Arlington , 569 U.S. at 305, 133 S.Ct. 1863, the heads of cabinet-level departments like DHS "are subject to the exercise of political oversight and share the President's accountability to the people." Freytag v. Comm'r of Internal Revenue , 501 U.S. 868, 886, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). Indeed, the Constitution's "Appointments Clause was designed to ensure public accountability for ... the making of a bad appointment...." Edmond v. United States , 520 U.S. 651, 660, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) ; see also Elena Kagan, Presidential Administration , 114 Harv. L. Rev. 2245, 2251-52 (2001) ("[A]ccountability" is one of the two "principal values that all models of administration must attempt to further."); 1 Richard J. Pierce, Jr., Administrative Law Treatise 114 (5th ed. 2010) ("Agencies are politically accountable because the President is accountable for the actions of agencies."). This democratic responsiveness is especially critical for agencies exercising prosecutorial functions because, as Justice Scalia explained in his oft-cited dissent in Morrison v. Olson , "[u]nder our system of government, the primary check against prosecutorial abuse is a political one." 487 U.S. 654, 728, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting). This check works because "when crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration." Id. at 728-29, 108 S.Ct. 2597. In other words, when prosecutorial functions are exercised in a manner that is within the law but is nevertheless repugnant to the sensibilities of the people, "the unfairness will come home to roost in the Oval Office." Id. at 729, 108 S.Ct. 2597. But public accountability for agency action can only be achieved if the electorate knows how to apportion the praise for good measures and the blame for bad ones. Without knowing the true source of an objectionable agency action, "the public cannot 'determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.' " Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. , 561 U.S. 477, 498, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (quoting The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ). In then-Professor Kagan's words, "the degree to which the public can understand the sources and levers of bureaucratic action" is "a fundamental precondition of accountability in administration." Kagan, supra , at 2332. The Montana Air rule promotes accountability by ensuring that the public knows where to place blame for an unpopular measure. When an agency justifies an action solely with an assertion that the law prohibits any other course, it shifts responsibility for the outcome from the Executive Branch to Congress (for making the law in question) or the courts (for construing it). If the Executive is correct in its interpretation of the law, then the public is correct to blame the other two branches for any resulting problems. But if the Executive is wrong, then it avoids democratic accountability for a choice that was the agency's to make all along. Allowing the judiciary-the branch ultimately responsible for interpreting the law, see Marbury , 5 U.S. (1 Cranch) at 177 -to review such decisions prevents this anti-democratic and untoward outcome. As Judge Bates of the District Court for the District of Columbia aptly put the point in confronting the very issue we face here, "an official cannot claim that the law ties her hands while at the same time denying the courts' power to unbind her. She may escape political accountability or judicial review, but not both." NAACP v. Trump , 298 F. Supp. 3d 209, 249 (D.D.C. 2018). We therefore must determine whether the Acting Secretary's decision to end DACA was based solely on a belief that the program was unlawful, such that the Chaney presumption does not apply. We take Attorney General Sessions literally at his word when he wrote to Acting Secretary Duke that "DACA was effectuated ... without proper statutory authority," and that DACA "was an unconstitutional exercise of authority by the Executive Branch." These are the reasons he gave for advising Acting Secretary Duke to rescind DACA. We therefore agree with the district court that the basis for the rescission was a belief that DACA was unlawful, and that the discretionary "litigation risk" rationale pressed by the government now is a mere post-hoc rationalization put forward for purposes of this litigation. Acting Secretary Duke's September 5, 2017, rescission memorandum contains exactly one sentence of analysis: Taking into consideration the Supreme Court's and the Fifth Circuit's rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated. In the next sentence, the Acting Secretary went on to announce the rescission itself: In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum. The easy rejoinder to the government's insistence that the Acting Secretary rescinded DACA due to "litigation risks" is that the Acting Secretary did not mention "litigation risks" as a "consideration." And both "consideration[s]" actually enumerated by the Acting Secretary are most naturally read as supporting a rationale based on DACA's illegality. The "ongoing litigation" referenced is of course Texas v. United States , in which the Fifth Circuit upheld a preliminary injunction against the related DAPA policy, and the Supreme Court affirmed by an equally divided vote. See Texas , 136 S. Ct. 2271 (2016) ; Texas , 809 F.3d 134 (5th Cir. 2015). The "rulings" in that case are propositions of law-taken alone, they are more readily understood as supporting a legal conclusion (DACA is illegal) than a pragmatic one (DACA might be enjoined). The pragmatic interpretation requires extra analytical steps (someone might sue to enjoin DACA, and they might win) that are entirely absent from the list of factors that the Acting Secretary stated she was "taking into consideration" in making her decision. Acting Secretary Duke easily could have included "the prospect of litigation challenging DACA" in her list of considerations; had she done so, then perhaps the reference to the Texas litigation could be read as supporting a practical worry about an injunction. Absent that, however, the mention of the courts' "rulings" is best read as referencing the courts' legal conclusions. Attorney General Sessions's September 4, 2017, letter likewise focuses on the supposed illegality of DACA, rather than any alleged "litigation risk." Its substantive paragraph states DACA was effectuated ... without proper statutory authority and with no established end-date, after Congress'[s] repeated rejection of proposed legislation that would have accomplished a similar result. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch. (emphases added). These sentences unmistakably reflect the Attorney General's belief that DACA was illegal and therefore beyond the power of DHS to institute or maintain. The letter goes on to opine that "[b]ecause the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA [in the Texas litigation], it is likely that potentially imminent litigation would yield similar results with respect to DACA." But in the context of the full paragraph, the reference to "similar results" is best read not as an independent reason for rescinding DACA, but as a natural consequence of DACA's supposed illegality-which is the topic of the paragraph as a whole. In the words of Judge Garaufis of the District Court for the Eastern District of New York, that reference "is too thin a reed to bear the weight of Defendants' 'litigation risk' argument." Batalla Vidal v. Nielsen , 279 F. Supp. 3d 401, 429 (E.D.N.Y. 2018). In any event, the Attorney General's letter is relevant only to the extent it illuminates whether Acting Secretary Duke-the official who actually rescinded the DACA program-did so as an exercise of her discretion or because she understood her hand to be forced by the law. In this connection, it is helpful to compare the operative language used by Acting Secretary Duke to rescind DACA with that used by her predecessor, Secretary John Kelly, to rescind DAPA just months before. In his June 15, 2017, memorandum, Secretary Kelly wrote: After consulting with the Attorney General, and in the exercise of my discretion in establishing national immigration enforcement policies and priorities, I hereby rescind the November 20, 2014 memorandum [that established DAPA]. (emphasis added). Placed alongside Acting Secretary Duke's language, the parallels-and the differences-are stark. Acting Secretary Duke's memorandum reads: In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum [that established DACA]. (emphasis added). The obvious similarities between the two passages strongly suggest that Acting Secretary Duke modeled her language after that of Secretary Kelly's memo. And indeed, we know that the Acting Secretary considered the Kelly memorandum in reaching her decision, because the government has told us so. See Petition for Writ of Mandamus, In re United States , No. 17-72917 (9th Cir. Oct. 20, 2017) (stating that the government's proffered administrative record in this case, which includes the Kelly memorandum, "consist[s] of the non-privileged materials considered by the Acting Secretary in reaching her decision to rescind the DACA policy"); id. at 18 (taking the position that only materials personally reviewed by the Acting Secretary herself, not by subordinates, are "considered" by the Secretary). Given that Acting Secretary Duke hewed so closely to Secretary Kelly's language in general, it is appropriate to draw meaning from the one major difference between the two sentences: Secretary Kelly exercised his "discretion " in ending DAPA; Acting Secretary Duke merely exercised her "authority ." Cf., e.g. , Jama v. ICE , 543 U.S. 335, 357, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) ("[W]hen the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended."). The point is that with the example set by the Kelly memorandum in front of her, Acting Secretary Duke clearly would have known how to express that the rescission was a discretionary act-if that were indeed the case. Furthermore, the near-verbatim language of the two rescission memoranda suggests that the Acting Secretary adopted the majority of Kelly's wording, but actively rejected describing the DACA rescission as an act of discretion. This difference in language cuts strongly against any suggestion that the rescission was discretionary. The government counters that the memorandum "focused from beginning to end principally on litigation concerns, not the legality of DACA per se ." But as the State plaintiffs point out, the memorandum's references to these supposed "litigation concerns" were limited to a simple summary of the Texas litigation's procedural history; appeared only in the "Background" section of the memorandum; and were not referenced in the Acting Secretary's statement of what she was "[t]aking into consideration." See also note 16, supra . The government also asserts that because the Acting Secretary wrote that DACA "should" rather than must be ended, she did not view herself as bound to act. But even on its face, "should" is fully capable of expressing obligation or necessity. See, e.g. , Should , New Oxford American Dictionary (3d ed. 2010) ("used to indicate obligation, duty, or correctness"); cf. Should , Garner's Dictionary of Legal Usage (3d ed. 2011) ("should ... is sometimes used to create mandatory standards"). The Acting Secretary's use of "should" instead of "must" cannot overcome the absence of any discussion of potential litigation or the "risks" attendant to it from the rescission memorandum's statement of reasons, and the discrepancy between the rescission of DAPA as an act of "discretion" and the rescission of DACA as an act of "authority." Finally, the government takes a quote from the Supreme Court to the effect that courts should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned," Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc. , 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), and contorts it into an argument that the district court's "narrow reading of the Acting Secretary's rationale is hardly the only one that 'may reasonably be discerned' from the Acting Secretary's memorandum." But Bowman is about finding a reviewable rationale in an agency's action versus finding no articulation of that rationale. Bowman does not say-and it certainly does not logically follow-that a court must ignore the most natural reading of an agency's statement of reasons just because it may also be "reasonably susceptible" to a (less compelling) reading that the government would prefer. The government is in effect asking the court to defer to agency counsel's post-hoc rationalization, as long as there is some reading of the rescission memorandum-never mind how strained-that would support it. Bowman does not require this incongruous result. We agree with the district court that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Under Montana Air and Chaney 's footnote four, this conclusion brings the rescission within the realm of agency actions reviewable under the APA. Unless the INA itself deprives the courts of jurisdiction over this case, we must proceed to evaluate the merits of plaintiffs' arbitrary-and-capricious claim. B. Jurisdiction under the INA The government contends that the INA stripped the district court of its jurisdiction in a provision that states: Except as provided in this section [which sets out avenues of review not applicable here] ... no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. § 1252(g). The Supreme Court has explicitly held that this section "applies only to three discrete actions that the [Secretary] may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders.' " AADC , 525 U.S. at 482, 119 S.Ct. 936 (emphasis in original). As the Court put it, "[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings. Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting." Id. The government attempts to expand Section 1252(g) to encompass this case in two ways. First, it points out that the AADC Court read that provision as Congress's effort to shield executive decisions not to grant deferred action from review outside the procedures prescribed by the INA. The Court quoted a treatise describing the practice of deferred action and the litigation that would result when the government declined to grant deferred action: "Efforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes have been favorably considered by the courts...." Id. at 484-85, 119 S.Ct. 936 (quoting 6 Charles Gordon et al., Immigration Law and Procedure § 72.03[2][h] (1998) ). Having reviewed these developments, the Court concluded: " Section 1252(g) seems clearly designed to give some measure of protection to 'no deferred action' decisions and similar discretionary determinations...." Id. at 485, 119 S.Ct. 936. The government argues that AADC 's reasoning-and therefore Section 1252(g) -applies to the rescission of DACA, which is itself in some sense a "no deferred action" decision. It seems quite clear, however, that AADC reads Section 1252(g) as responding to litigation over individual "no deferred action" decisions, rather than a programmatic shift like the DACA rescission. For example, the treatise passage AADC quotes to set the scene for Congress's action refers explicitly to "[e]fforts to challenge the refusal to exercise [deferred action] on behalf of specific aliens ...." Id. (emphasis added). And in any case, the holding of AADC was explicit: "The provision applies only to [the] three discrete actions" mentioned in the statute. Id. at 482, 119 S.Ct. 936. The government's fallback argument is thus to cast the rescission of DACA as an initial "action" in the agency's "commence[ment] [of] proceedings." 8 U.S.C. § 1252(g). But AADC specifically rejected a broad reading of the three discrete actions listed in Section 1252(g). "[D]ecisions to open an investigation, [or] to surveil the suspected violator" are not included in Section 1252(g)'s jurisdictional bar, AADC , 525 U.S. at 482, 119 S.Ct. 936, even though these actions are also "part of the deportation process," id. , and could similarly be construed as incremental steps toward an eventual "commence[ment] [of] proceedings," 8 U.S.C. § 1252(g). Indeed, in a case closely on point, our court rejected the application of Section 1252(g) and allowed to proceed a challenge to INS guidance narrowly interpreting the terms of a "one-time legalization program" for undocumented immigrants. See Catholic Soc. Servs., Inc. v. INS , 232 F.3d 1139, 1141 (9th Cir. 2000). We noted that "[a]s interpreted by the Supreme Court in [ AADC ], [ Section 1252(g) ] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings," and held that the challenge was not barred. Id. at 1150. The panel did not appear concerned by the fact that it was possible to conceptualize that policy choice by INS as an ingredient in a subsequent decision to commence proceedings against particular individuals. The government cites no cases applying the Section 1252(g) bar to a programmatic policy decision about deferred action; the two cases it does cite were challenges to individual "no deferred action" decisions-that is, they fall exactly within Section 1252(g) as interpreted by the Court in AADC . See Vasquez v. Aviles , 639 F. App'x 898 (3d Cir. 2016) ; Botezatu v. INS , 195 F.3d 311 (7th Cir. 1999). Especially in light of the " 'strong presumption in favor of judicial review of administrative action' governing the construction of jurisdiction-stripping provisions of IIRIRA," ANA Int'l, Inc. v. Way , 393 F.3d 886, 891 (9th Cir. 2004) (quoting INS v. St. Cyr , 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ), we hold that Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order. IV. Having concluded that neither the APA nor the INA precludes judicial review, we turn to the merits of the preliminary injunction. The district court held that plaintiffs satisfied the familiar four-factor preliminary injunction standard with respect to their claim under the APA that the rescission of DACA was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A). The government takes issue with the district court's conclusion on only one of the preliminary injunction factors: the likelihood of success on the merits. In an arbitrary-and-capricious challenge, "[i]t is well-established that an agency's action must be upheld,