Whitewater Draw Natural Resource Conservation District v. Alejandro Mayorkas

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WHITEWATER DRAW NATURAL
RESOURCE CONSERVATION
DISTRICT; HEREFORD NATURAL
RESOURCE CONSERVATION
DISTRICT; ARIZONA ASSOCIATION OF
CONSERVATION DISTRICTS;
CALIFORNIANS FOR POPULATION
STABILIZATION; SCIENTISTS AND
ENVIRONMENTALISTS FOR
POPULATION STABILIZATION; NEW
MEXICO CATTLEGROWERS’
ASSOCIATION; GLEN COLTON;
RALPH POPE,
Plaintiffs-Appellants,
v.
ALEJANDRO MAYORKAS, in his
official capacity as Secretary of
Homeland Security; U.S.
DEPARTMENT OF HOMELAND
SECURITY,
Defendants-Appellees.
No. 20-55777
D.C. No.
3:16-cv-02583-
L-BLM
OPINION

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WHITEWATER DRAW V. MAYORKAS 2
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted May 11, 2021
Pasadena, California
Filed July 19, 2021
Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,
and Kathleen Cardone,* District Judge.
Opinion by Judge Bybee
SUMMARY**
Environmental Law / Immigration / Standing
The panel affirmed the district court’s judgment in favor
of the Secretary of the Department of Homeland Security in
an action brought by plaintiff organizations and individuals
alleging that the Secretary violated the National
Environmental Policy Act (“NEPA”) by failing to consider
the environmental impacts of various immigration programs
and immigration-related policies.
* The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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WHITEWATER DRAW V. MAYORKAS 3
Plaintiffs identify themselves as environmentalists,
environmental groups, natural resource conservation groups,
and cattle ranchers from Arizona, New Mexico, Colorado,
and California. Count I of the First Amended Complaint
challenged DHS’s 2015 Instruction Manual, which
implements NEPA and Council of Environmental Quality
(“CEQ”) regulations. Count II asserted that DHS
implemented eight programs that failed to comply with
NEPA. Count III alleged that DHS’s Categorical Exclusion
A3 (“CATEX A3”) was arbitrary and capricious in violation
of the Administrative Procedure Act. Count IV challenged
DHS’s application of CATEX A3 to four DHS actions as
contrary to NEPA and the APA. Count V challenged
environmental assessments (“EA”) and findings of no
significant impact (“FONSI”) issued by DHS in August 2014.
Concerning Count I, the panel held that the Manual did
not constitute “final agency action” subject to review under
§ 704 of the APA. Applying the two-part test in Bennett v.
Spear, 520 U.S. 154 (1977), the panel held that the Manual
did not meet the “consummation” first prong because it did
not make any “decision,” rather it merely established the
procedures for ensuring DHS’s compliance with NEPA. The
panel held further that plaintiffs could not satisfy the “legal
effect” second prong of the test because the Manual did not
impose new legal requirements or alter the legal regime to
which DHS was subject. The panel concluded that the
district court properly dismissed Count I.
Concerning Count II, wherein the plaintiffs alleged that
DHS implemented seven programs in violation of NEPA, the
panel agreed with the district court that none of these
programs were reviewable because they were not discrete
agency actions. Specifically, as to the seven non-Deferred

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Action for Childhood Arrivals (“DACA”) programs, the
panel held that Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871
(1990), squarely foreclosed plaintiffs’ request for judicial
review, where plaintiffs’ challenge to the seven programs was
indistinguishable from the broad programmatic attack at issue
in National Wildlife.
Concerning Count II (plaintiffs’ challenge to DACA) and
III-V (plaintiffs’ facial challenge to CATEX A3), the panel
considered whether plaintiffs lacked Article III standing.
Plaintiffs could claim only procedural injury, and they alleged
that compliance with NEPA was required and preparation of
an environmental impact statement might have affected
DHS’s decisions. To satisfy the injury-in-fact element for a
procedural injury, the plaintiffs had to show that the
procedures were designed to protect some threatened concrete
interest that was the basis of their standing, and the
reasonable probability of the challenged action’s threat to
plaintiffs’ concrete interest.
Plaintiffs alleged they had standing to challenge DACA
because, by allowing individuals who entered the country
illegally to remain with federal approval, DACA both added
“more settled population” when it was implemented in 2012
and now enticed future unlawful entry. The panel rejected
both theories. As to the enticement theory, the panel held that
plaintiffs alleged no facts supporting their allegations that
DACA caused illegal immigration. As to the “more settled
population” theory, the panel held there was no redressability,
and thus no standing, where DHS retained sole discretion
over how to prioritize future removal proceedings.
Concerning Count III and plaintiffs’ facial challenge to
CATEX A3, the panel held that plaintiffs made no attempt to

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WHITEWATER DRAW V. MAYORKAS 5
tie CATEX A3 to any particular action by DHS, and this was
insufficient to create Article III standing.
Concerning Count IV, plaintiffs alleged that DHS’s
application of CATEX A3 to the DSO Rule, the STEM Rule,
the AC21 Rule, and International Entrepreneur Rules was
improper because these rules contributed to immigration-
induced population growth. The panel held that plaintiffs
failed to show injury-in-fact or causation where they offered
no evidence showing that population growth was a
predictable effect of the DSO and STEM Rules. Similarly,
the panel held that plaintiffs failed to show injury-in-fact or
causation between the AC21 Rule and population growth
where any increase in immigration that may result from the
AC21 Rule would be a product of independent, third-party
decisionmaking not fairly traceable to the AC21 Rule itself.
The panel held that plaintiffs failed to show injury-in-fact or
causation concerning their challenge to the International
Entrepreneur Rule where they did not show that aliens
admitted under the Rule permanently stayed in the United
States because of the Rule. Finally, plaintiffs alleged they
had standing to challenge all four rules because CEQ
regulations required agencies to consider cumulative impacts
on the environment. The panel held that any “cumulative
effect” analysis required by NEPA did not bear on whether
plaintiffs had standing to challenge the rules.
Concerning Count V, the panel held that plaintiffs also
lacked Article III standing to challenge the sufficiency of the
EAs and FONSIs issued in relation to President Obama’s
Response to the Influx of Unaccompanied Alien Children
Across the Southwest border.

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WHITEWATER DRAW V. MAYORKAS 6
COUNSEL
Julie Axelrod (argued), Washington, D.C.; John C. Eastman
and Anthony T. Caso, Center for Constitutional
Jurisprudence, Orange, California; Lesley Gay Glackner,
Legal Fellow, Center for Immigration Studies, Washington,
D.C.; for Plaintiffs-Appellants.
Kevin W. McArdle (argued), Barclay T. Samford, and Robert
J. Lundman, Attorneys; Eric Grant, Deputy Assistant
Attorney General; Jonathan D. Brightbill, Principal Deputy
Assistant Attorney General; Environment and Natural
Resources Disivion, United States Department of Justice,
Washington, D.C.; Amber N. Napolitano, Attorney, Office of
General Counsel, United States Department of Homeland
Security, Washington, D.C.; for Defendants-Appellants.
OPINION
BYBEE, Circuit Judge:
Plaintiffs are organizations and individuals who seek to
reduce immigration into the United States because it causes
population growth, which in turn, they claim, has a
detrimental effect on the environment. Plaintiffs allege that
the Secretary of the Department of Homeland Security (the
Secretary or DHS) violated the National Environmental
Policy Act (NEPA), 42 U.S.C. §§ 4331–4370m-12, by failing
to consider the environmental impacts of various immigration
programs and immigration-related policies. The district court
dismissed two of Plaintiffs’ claims and granted summary
judgment in favor of the Secretary on the remaining claims.
We affirm.

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I. BACKGROUND
We begin with a brief overview of NEPA and its
corresponding regulations before turning to the facts of this
case.
A. NEPA
Congress enacted NEPA in recognition of “the profound
impact of man’s activity on the interrelations of all
components of the natural environment, particularly the
profound influences of population growth,” and other
enumerated factors. 42 U.S.C. § 4331(a). NEPA requires all
federal agencies to “include in every recommendation or
report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human
environment” a “detailed statement” known as an
“environmental impact statement” (EIS). Id. § 4332(2)(C).
The EIS should address “the environmental impact of the
proposed action”; “any adverse environmental effects which
cannot be avoided”; “alternatives to the proposed action”;
“the relationship between local short-term uses of man’s
environment and the maintenance and enhancement of long-
term productivity”; and “any irreversible and irretrievable
commitments of resources which would be involved in the
proposed action.” Id. § 4332(2)(C)(i)–(v). “Although these
procedures are almost certain to affect the agency’s
substantive decision, it is now well settled that NEPA itself
does not mandate particular results, but simply prescribes the
necessary process.” Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350 (1989) (citations omitted). Even
where an agency determines that there will be “adverse
environmental effects of the proposed action,” the agency
may still “decid[e] that other values outweigh the

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environmental costs.” Id. (citations omitted). The purpose
of NEPA is “to insure that the agency has taken a ‘hard look’
at environmental consequences.” Kleppe v. Sierra Club,
427 U.S. 390, 410 n.21 (1976) (citing Nat Res. Def. Council
v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)).
NEPA established in the Executive Office of the President
a Council on Environmental Quality (CEQ) to promulgate
regulations to implement NEPA. 42 U.S.C. § 4342. Under
CEQ regulations, an agency must first assess the appropriate
level of NEPA review. If it is clear that an EIS must be
prepared, the agency should proceed with the EIS. 40 C.F.R.
§ 1501.4(a)(1) (2017).1 Otherwise, the agency may prepare
an “environmental assessment” (EA)—which is a “concise
public document,” id. § 1508.9(a)—to determine whether a
proposed action requires an EIS, id. §§ 1501.4, 1508.9. If,
after preparing an EA, the agency determines that an EIS is
not required, the agency then may issue a “[f]inding of no
significant impact” (FONSI). Id. §§ 1501.4(e), 1508.13; see
also Metcalf v. Daley, 214 F.3d 1136, 1142 (9th Cir. 2000).
The regulations also permit an agency to determine in
advance that “a category of actions [will] not individually or
cumulatively have a significant effect on the human
environment . . . and for which, therefore, neither an
environmental assessment nor an environmental impact
statement is required.” 40 C.F.R. § 1508.4. These categories
of actions are often referred to as CATEXs. Federal agencies
must “adopt procedures to supplement [NEPA] regulations,”
1 Unless otherwise noted, we will refer to the 2017 version of the
CEQ regulations, which were in effect when Plaintiffs filed their
complaint. The regulations have since been revised substantially. See
Update to the Regulations Implementing the Procedural Provisions of the
National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020).

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WHITEWATER DRAW V. MAYORKAS 9
id. § 1507.3(a), and “integrate the NEPA process with other
planning at the earliest possible time,” Andrus v. Sierra Club,
442 U.S. 347, 351 (1979) (citation omitted).
B. Proceedings
Plaintiffs identify themselves as environmentalists,
environmental groups, natural resource conservation groups,
and cattle ranchers from Arizona, New Mexico, Colorado,
and California.2 The gravamen of Plaintiffs’ complaint is that
“[t]he primary factor driving U.S. population growth is
international migration”—the entry of “approximately
35 million foreign nationals”—and that such growth has
caused “enormous impacts” to the human environment, such
as urban sprawl, loss of biodiversity, and increasing CO2
emissions. Plaintiffs complain that, despite the impact of
immigration on the human environment, “DHS has failed to
initiate any NEPA review” for “its programs regulating the
entry and settlement of foreign nationals [in the United
States]”; instead, DHS has “simply ignore[d] the impacts that
foreign nationals themselves have on the human
environment.”
The First Amended Complaint (FAC) contains five
counts. Count I challenges DHS’s 2015 Instruction Manual
(the Manual), which implements NEPA and CEQ regulations.
The FAC alleges that the Manual failed to require DHS to
comply with NEPA and is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” in
violation of the Administrative Procedure Act (APA),
2 The First Amended Complaint also included “Floridians for
Population Stabilization” as an organizational Plaintiff. Plaintiffs have
advised us that this organization is now defunct and not part of this appeal.

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WHITEWATER DRAW V. MAYORKAS 10
5 U.S.C. § 706(2)(A). Count II asserts that DHS implements
eight “programs” for which it failed to comply with NEPA:
(1) employment-based immigration; (2) family-based
immigration; (3) long-term nonimmigrant visas; (4) parole;
(5) Temporary Protected Status (TPS); (6) refugees;
(7) asylum; and (8) Deferred Action for Childhood Arrivals
(DACA). In Count III, Plaintiffs allege that DHS’s
Categorical Exclusion A3 (CATEX A3) is arbitrary and
capricious, in violation of the APA. CATEX A3 applies to
the “[p]romulgation of rules, issuance of rulings or
interpretations, and the development and publication of
policies, orders, directives, notices, procedures, manuals,
advisory circulars, and other guidance documents” that are
“strictly administrative or procedural”; “implement, without
substantive change, statutory or regulatory requirements . . .
procedures, manuals, and other guidance documents”; or
“interpret or amend an existing regulation without changing
its environmental effect.” CATEX A3 is published in the
appendix of the Manual.
In Count IV, Plaintiffs challenge DHS’s application of
CATEX A3 to four DHS actions as contrary to NEPA and
arbitrary and capricious under the APA:
1. Adjustments to Limitations on Designated School
Official Assignment and Study by F-2 and M-2
Nonimmigrants (DSO Rule), 80 Fed. Reg. 23680 (Apr.
29, 2015), which amended DHS’s Student and Exchange
Visitor Program by allowing for (1) more designated
school officials to oversee the program; and (2) spouses
and children of visiting students to take classes on a part-
time basis. Id. at 23,681–82.

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2. Improving and Expanding Training Opportunities for
F-1 Nonimmigrant Students with STEM Degrees and
Cap-Gap Relief for All Eligible F-1 Students (STEM
Rule), 81 Fed. Reg. 13,040 (Mar. 11, 2016), which allows
nonimmigrant students with degrees in STEM fields from
U.S. universities to apply for a 24-month visa extension
(replacing the previously available 17-month extension).
Id. at 13,041. It also strengthens DHS’s oversight of the
program. Id. at 13,041–42.
3. Retention of EB-1, EB-2, and EB-3 Immigrant
Workers and Program Improvements Affecting High-
Skilled Nonimmigrant Workers (AC21 Rule), 81 Fed.
Reg. 82,398 (Nov. 18, 2016), which aims to improve “the
ability of U.S. employers to hire and retain high-skilled
workers” with employment-based visas, and to increase
the ability of visa-holding workers to change positions or
employers. Id. at 82,398.
4. International Entrepreneur Rule, 82 Fed. Reg. 5,238
(Jan. 17, 2017), which establishes criteria for DHS to use
its discretionary parole authority to grant temporary
parole to “entrepreneurs of start-up entities” with
significant potential for rapid growth and job creation. Id.
at 5,238.
Finally, in Count V, Plaintiffs challenge EAs and FONSIs
issued by DHS in August 2014. On June 2, 2014, President
Barack Obama issued a memorandum entitled “Response to
the Influx of Unaccompanied Alien Children Across the
Southwest Border,” in which he directed the Secretary to
address a dramatic increase in children and families crossing
our border with Mexico. DHS responded with a proposal to
expand infrastructure for temporary detention space,

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transportation, and medical care for the children and families
crossing the southwest border. DHS prepared a
programmatic EA under NEPA and ultimately issued a
FONSI for the infrastructure proposal. DHS subsequently
prepared a supplemental EA and issued a FONSI for a project
to construct additional housing in Dilley, Texas. Plaintiffs
allege that DHS failed to take a “hard look” at the
environmental impacts of this action, in violation of NEPA,
CEQ regulations, and the APA.
After Plaintiffs filed their FAC, the Secretary moved to
dismiss Counts I and II. The district court granted the motion
in full under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, finding neither count reviewable under the APA.
The parties subsequently filed cross-motions for summary
judgment on Counts III–V, and the district court granted
summary judgment in favor of DHS on the grounds that
Plaintiffs lacked Article III standing to bring this action.
Plaintiffs timely appealed.
II. SCOPE AND STANDARD OF REVIEW
The scope of our review is determined by the judicial
review provisions of the APA, 5 U.S.C. §§ 701–706. Under
the APA, “[t]he form of proceeding for judicial review is the
special statutory review proceeding relevant to the subject
matter.” 5 U.S.C. § 703. Where “no special statutory review
proceeding is applicable, the action for judicial review may
be brought against the United States, the agency by its official
title, or the appropriate officer.” Id. NEPA does not contain
a “special statutory review” provision, so Plaintiffs properly
filed their suit against the Secretary and DHS under the
general review provisions of the APA. See 5 U.S.C. § 704
(“Agency action made reviewable by statute and final agency

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WHITEWATER DRAW V. MAYORKAS 13
action for which there is no other adequate remedy in a court
are subject to judicial review.”); Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 882–83 (1990); Ashley Creek Phosphate
Co. v. Norton, 420 F.3d 934, 939 (9th Cir. 2005). In order to
seek judicial review under the APA, the plaintiff or petitioner
must have suffered a “legal wrong” or been “adversely
affected or aggrieved” by a “final agency action.” 5 U.S.C.
§§ 702, 704. Under § 706 of the APA, as a reviewing court,
we will “hold unlawful and set aside agency action, findings,
and conclusions” when they are found to be, among other
criteria, “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
The standard of review is our ordinary rule regarding
review of determinations by a district court at the motion to
dismiss and summary judgment stages. We review dismissals
under Rules 12(b)(1) and 12(b)(6) de novo.3 Rhoades v. Avon
Prods., Inc., 504 F.3d 1151, 1156 (9th Cir. 2007). Likewise,
we review a district court’s grant of summary judgment and
its determination on the issue of standing de novo. San Luis
& Delta-Mendota Water Auth. v. United States, 672 F.3d 676,
699 (9th Cir. 2012); see Nat’l Wildlife Fed’n, 497 U.S.
at 884–85.
III. DISCUSSION
We will address the district court’s dismissal of Counts I
and II separately, and then address the court’s grant of
summary judgment on Counts III–V together.
3 The Secretary argues that the district court incorrectly dismissed
Count I under Rule 12(b)(6), rather than under Rule 12(b)(1). But as the
Secretary acknowledges, this issue is immaterial to this appeal because we
review dismissals under both Rule 12(b)(1) and Rule 12(b)(6) de novo.

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A. Count I
Plaintiffs allege in Count I that the Manual is arbitrary
and capricious because it fails “to incorporate NEPA
compliance” and violates CEQ regulations. The threshold
question for the district court was whether the Manual
constituted “final agency action” subject to our review under
§ 704 of the APA. We agree with the district court that it
does not.
In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme
Court established a two-part test for determining whether an
agency action is final. The action must: (1) “mark the
consummation of the agency’s decisionmaking process [and]
must not be of a merely tentative or interlocutory nature”; and
(2) “be one by which rights or obligations have been
determined, or from which legal consequences will flow.”
See id. at 177–78 (citations and internal quotation marks
omitted). “In determining whether an agency’s action is
final, we look to whether the action amounts to a definitive
statement of the agency’s position or has a direct and
immediate effect on the day-to-day operations of the subject
party, or if immediate compliance with the terms is
expected.” Or. Nat. Desert Ass’n v. U.S. Forest Serv.,
465 F.3d 977, 982 (9th Cir. 2006) (cleaned up). Our focus is
“on the practical and legal effects of the agency action,” with
the understanding that the “finality element must be
interpreted in a pragmatic and flexible manner.” Id.
(citations omitted).
1. Consummation
In holding that the Manual does not meet Bennett’s first
prong, the district court relied on our decision in Oregon

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Natural Desert Ass’n v. United States Forest Service,
465 F.3d 977 (9th Cir. 2006). In that case, we considered
whether the Forest Service’s issuance of annual operating
instructions (AOIs) to permittees who graze livestock on
national forest land constituted final agency action. Id.
at 983. The Forest Service manages livestock grazing in
national forests via land management directives known as
Allotment Management Plans (AMPs), and it generally issues
grazing permits for ten-year periods. Id. at 980. The Forest
Service also issues AOIs to permit holders annually. Id. The
AOIs convey the “more long-term directives [contained in the
AMP and permits] into instructions to the permitee for annual
operations.” Id. Indeed, “the AOI is the only substantive
document in the annual application process, [and] it functions
to do more than make minor adjustments in the grazing
permit . . . ; pragmatically, it functions to start the grazing
season.” Id. at 985. Because the AOI “is the only instrument
that instructs the permit holder how [AMPs, grazing permits,
and forest plans] will affect his grazing operations during the
upcoming season,” we reasoned that an AOI “is the Forest
Service’s ‘last word’ before the permit holders begin grazing
their livestock.” Id. We concluded that AOIs were final
agency actions subject to judicial review under the APA. Id.
at 990.
The district court here determined that, unlike an AOI, the
Manual “does not make any decision.” Rather, “[i]t
establishes the procedures for ensuring DHS’s compliance
with NEPA.” We agree with the district court. Although in
Oregon Natural Desert Ass’n, an AOI represented the
culmination of the Forest Service’s decisionmaking process
each grazing season, the Manual facilitates the beginning of
the NEPA review process for proposed DHS actions. And
although an agency’s decision not to prepare an EIS is subject

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to judicial review, see San Luis & Delta Mendota Water Auth.
v. Jewell, 747 F.3d 581, 640–55 (9th Cir. 2014), the Manual
is not itself a decision that any particular DHS action requires
or does not require an EIS. Any guidance that could be
attributed to the Manual would be subsumed in any final rule
issued by DHS on a particular matter. See 5 U.S.C. § 704 (“A
preliminary, procedural, or intermediate agency action or
ruling . . . is subject to review on the review of the final
agency action.”).
Pointing to Safer Chemicals, Healthy Families v. EPA,
943 F.3d 397, 405 (9th Cir. 2019), Plaintiffs respond that “a
rule that lays out mandatory criteria for how an agency will
conduct its subsequent project-specific assessments is also a
final action subject to APA review.” But Plaintiffs’ reliance
on that case is misplaced. In Safer Chemicals, EPA adopted
a “Risk Evaluation Rule” under the Toxic Substances Control
Act (TSCA), 15 U.S.C. §§ 2601–2697. Id. at 405. The
TSCA has a special judicial review provision, 15 U.S.C.
§ 2618, authorizing petitions for review of a rule promulgated
under the Act. Id. § 2618(a)(1)(A). We held, nevertheless,
that the preamble to the rule was “not reviewable as final
agency action” because it reserved discretion to EPA and thus
was “not the sort of language that indicates an agency has
intended to bind itself.” Safer Chemicals, 943 F.3d at 418.
By contrast, another section of the rule that was actually “part
of the rule itself” was not “too speculative to evaluate”
because it asserted EPA’s discretion to exclude certain
matters and because the petitioners claimed that the “TSCA
forecloses the Agency from asserting such discretion.” Id.
The Manual, like the preamble to the rule at issue in Safer
Chemicals, is not a final agency decision subject to review
under the APA. The Manual describes how DHS will

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implement NEPA, but it does not prescribe any action in any
particular matter. The Manual states that “NEPA applies to
the majority of DHS actions.” It acknowledges that there
may be “[e]xamples of situations in which NEPA is not
triggered,” but that such examples are “very few.” In
accordance with CEQ regulations, the Manual provides for
categorical exclusions (CATEXs) from NEPA to “enable
DHS to avoid unnecessary efforts, paperwork, and delays and
concentrate on those proposed actions having real potential
for environmental impact,” but it does not prescribe any
decisions regarding NEPA review of proposed
actions—including whether a CATEX applies to a proposed
project. Cf. Fairbanks N. Star Borough v. U.S. Army Corps.
of Eng’rs, 543 F.3d 586, 593 (9th Cir. 2008) (Army Corps of
Engineers’ jurisdictional determination represented “the
agency’s ‘last word’ on whether it view[ed] the property as a
wetland subject to regulation under the [Clean Water Act
(CWA)]” because “[n]o further agency decisionmaking on
that issue c[ould] be expected”). The Manual is careful to
advise that DHS “Components4 may otherwise decide to
prepare an EA for any action at any time.” This is not the
stuff of final agency decisionmaking. The Manual contains
very general instructions and has not bound DHS to any
particular decision. It is a manual for preparing to make
NEPA-related decisions, not the “‘consummation’ of the
agency’s decisionmaking process.” Bennett, 520 U.S. at 178.
4 Per the Manual, “Components” refer to “any organization which
reports directly to the Office of the Secretary of DHS when approved as
such by the Secretary.”

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2. Legal Effect
It is equally clear that Plaintiffs cannot satisfy the second
prong of the “final agency action” test. If “consummation”
addresses itself to “final agency action,” Bennett’s second
prong addresses itself to “final agency action,” which is an
act “by which rights or obligations have been determined, or
from which legal consequences will flow.” Bennett, 520 U.S.
at 178 (citation and internal quotation marks omitted); see
also 5 U.S.C. § 551(13) (defining “agency action” as “the
whole or part of an agency rule, order, license, sanction,
relief, or the equivalent or denial thereof, or failure to act”).
Agency actions “impose an obligation, deny a right, or fix
some legal relationship as a consummation of the
administrative process.” Or. Nat. Desert Ass’n, 465 F.3d at
987 (citation omitted).
Plaintiffs do not claim the Manual imposes any obligation
upon them. Rather, Plaintiffs argue that the Manual’s
mandatory language establishes “a binding set of legal
obligations upon DHS.” This argument is too thin to satisfy
Bennett’s second prong. Plaintiffs’ focus on the Manual’s use
of language like “must” and “requirement” ignores that
NEPA, not the Manual, is the source of any binding legal
obligations to which DHS is subject. Cf. Fairbanks, 543 F.3d
at 594 (“At bottom, [plaintiff] has an obligation to comply
with the CWA . . . . [plaintiff]’s legal obligations arise
directly and solely from the CWA.”). The Manual does not
augment or diminish DHS’s NEPA obligations; it simply
facilitates DHS’s fulfillment of those obligations. Indeed,
Plaintiffs point to no provision in the Manual for which
DHS’s noncompliance might result in a consequence beyond
those contained in NEPA.

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Moreover, that the Manual integrates “the NEPA process
with review and compliance requirements” found in other
federal laws and regulations does not mean the Manual
announces new substantive rules that alter the legal regime to
which DHS is subject. In a proper action against DHS for
failure to comply with NEPA, DHS would face liability for
noncompliance with NEPA or other federal laws, not for its
noncompliance with the Manual. See Fairbanks, 543 F.3d
at 594; see also e.g., Home Builders Ass’n of Chicago v. U.S.
Army Corps of Eng’rs, 335 F.3d 607, 616–19 (7th Cir. 2003)
(evaluating an interagency coordination agreement (ICA)
under Bennett’s second prong and finding the ICA did not
“add[] new ‘conflicting requirements’” where it referenced
substantive requirements that are “a pervasive feature of the
regulatory landscape, not something that the ICA created”).
Because the Manual does not impose new legal requirements
or alter the legal regime to which DHS is subject, the district
court correctly concluded that the Manual fails Bennett’s
second prong and properly dismissed Count I.
B. Count II
In Count II, Plaintiffs allege that DHS implements eight
“programs” in violation of NEPA. The FAC identifies the
following “programs”:
1) Employment-based immigration authorized
by Immigration and Nationality Act (INA)
§ 203(b);
2) Family-based immigration, authorized by
INA § 203(a) and INA § 201(b);

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3) Long-term nonimmigrant visas, authorized
by INA § 214;
4) Parole, authorized by INA § 212(d)(5)(A);
5) Temporary Protective Status, authorized by
INA § 244;
6) Refugees, authorized by INA § 207;
7) Asylum, authorized by INA § 208; and
8) Deferred Action for Childhood Arrivals
(“DACA”), authorized by executive order.
The FAC does not cite any regulations, rules, orders, public
notices, or policy statements that authorize or enforce these
“programs”; they are identified only generically and, with the
exception of DACA, not by name.5 To be sure, in Appendix
C to an affidavit attached to the FAC as Exhibit 3, the affiant
listed 81 DHS regulations and five policy memoranda that
i mp l e m e n t t h e s e p r o g r a m s . M a n y o f t h e
regulations—certainly those dating from the 1980s and
1990s—are well outside the six-year statute of limitations for
actions under the APA. See 28 U.S.C. § 2401(a); Cal. Sea
Urchin Comm’n v. Bean, 828 F.3d 1046, 1049 (9th Cir.
2016). In their briefing, Plaintiffs concede that the
5 In its briefing on appeal, DHS separates the first seven “programs”
from the 2012 DACA Memorandum. DHS does not challenge Plaintiffs’
claim that DACA is a discrete agency action; DHS instead asserts that
Plaintiffs lack standing to challenge DACA. Accordingly, we will focus
only on the first seven programs in this section and discuss DACA in the
next section.

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regulations cited are outside the statute of limitations, but
aver that the “litany” they presented was merely illustrative
of their claim that “DHS had never undertaken the
environmental assessments required by NEPA.” The district
court determined that none of these “programs” are
reviewable because they are not discrete agency actions. We
agree.
It is axiomatic that Plaintiffs must identify an “agency
action” to obtain review under the APA. Norton v. S. Utah
Wilderness All., 542 U.S. 55, 61–62 (2004). An agency
action is “circumscribed” and “discrete,” such as “a rule,
order, license, sanction [or] relief.” Id. at 62 (citing 5 U.S.C.
§ 551(13)). A plaintiff or petitioner “must direct its attack
against some particular ‘agency action’ that causes it harm.”
Nat’l Wildlife Fed’n, 497 U.S. at 891 (emphasis added). This
limitation on judicial review precludes “broad programmatic
attack[s],” whether couched as a challenge to an agency’s
action or “failure to act.” See S. Utah Wilderness All.,
542 U.S. at 64–65.6
6 Plaintiffs attempt to avoid the requirement of identifying a discrete
agency action by arguing that they “simply seek to compel DHS to
perform the environmental assessments mandated by NEPA.” But in
Southern Utah Wilderness Alliance, the Court made clear that a plaintiff
cannot obtain judicial review by simply recasting his or her challenge “in
terms of ‘agency action unlawfully withheld’ under § 706(1), rather than
agency action ‘not in accordance with law’ under §706(2).” 542 U.S. at
64–65 (observing that the plaintiffs in National Wildlife “would have fared
no better” had they sought to compel agency action under § 706(1)
because “a claim under § 706(1) can proceed only where a plaintiff asserts
that an agency failed to take a discrete agency action that it is required to
take.”).

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The Supreme Court’s decision in National Wildlife
squarely forecloses Plaintiffs’ request for judicial review of
these seven “programs.” In that case, the National Wildlife
Federation brought a challenge to what it called the Bureau of
Land Management (BLM)’s “land withdrawal review
program,” including a claim that BLM had violated NEPA.
497 U.S. at 879. That “program” consisted of hundreds, and
perhaps thousands, of actions, such as public land status
determinations, that BLM undertook pursuant to the
directives of the Federal Land Policy and Management Act of
1976 (FLPMA), 43 U.S.C. §§ 1701–1787. Id. at 877; see
also id. at 890 (referring to the district court’s finding that the
“program” extended to “1250 or so individual classification
terminations and withdrawal revocations”). The Court held
that the “so-called ‘land withdrawal review program’” was
“not an ‘agency action’ within the meaning of § 702” because
it did “not refer to a single BLM order or regulation, or even
to a completed universe of particular BLM orders and
regulations.” Id. at 890. What the National Wildlife
Federation called a “program” was “no more an identifiable
‘agency action’ . . . than a ‘weapons procurement program’
of the Department of Defense or a ‘drug interdiction
program’ of the Drug Enforcement Administration.” Id.
The Court’s opinion was couched in terms of APA
review, but its concerns sounded in separation of powers as
well. The Court did not disparage the National Wildlife
Federation’s claims that “violation of the law is rampant
within this [land use] program.” Id. at 891. Rather, the
Court’s focus was that such systemic challenges, seeking
“wholesale improvement . . . by court decree,” were properly
matters that should be pursued in the “offices of the
Department [of the Interior] or the halls of Congress, where
programmatic improvements are normally made.” Id. As

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relevant here, Article III of the Constitution limits the
“judicial Power” of the federal courts to “cases . . . arising
under . . . the Laws of the United States . . . [and] to
Controversies to which the United States shall be a Party.”
U.S. Const. art. III, § 2, cl. 1. Consistent with the cases or
controversies requirement, the APA does not give federal
courts general supervisory authority over executive agencies,
but only over cases in which “[a] person [has] suffer[ed] legal
wrong because of agency action, or [is] adversely affected or
aggrieved by agency action.” 5 U.S.C. § 702; see Valley
Forge Christian Coll. v. Ams. United for Separation of
Church & State, 454 U.S. 464, 471 (1982) (“The judicial
power of the United States defined by Art. III is not an
unconditioned authority to determine the constitutionality of
legislative or executive acts.”). The Court recognized in
National Wildlife that this “case-by-case approach . . . is
understandably frustrating” to those seeking “across-the
board” relief. 497 U.S. at 894. But in the absence of express
congressional authorization, and subject to Article III
constraints, “more sweeping actions are for the other
branches.” Id.
We cannot see how Plaintiff’s challenge to the seven
“programs” is in any way distinguishable from the broad
programmatic attack at issue in National Wildlife. As in
National Wildlife, the challenged “programs” merely refer to
continuing operations of DHS in regulating various types of
immigration. Id. at 891. That Plaintiffs attach a list of eighty
plus actions taken by DHS over the past 40 years to
implement these “programs” only weakens their case.
Plaintiffs cannot obtain review of all of DHS’s individual
actions pertaining to, say, “employment-based immigration”

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in one fell swoop by simply labeling them a “program.”7
Plaintiffs either must identify a particular action by DHS that
they wish to challenge under the APA, or they must pursue
their remedies before the agency or in Congress. They may
think that the third branch is more convenient or accessible,
but the APA—consistent with Article III—will not permit
such forays outside the “traditional, . . . normal[] mode of
operation of the courts,” which remains limited to
“controvers[ies] . . . reduced to more manageable
proportions.” Id. at 891, 894.
C. Counts II (DACA) and III–V
The district court granted summary judgment in favor of
DHS on Counts III–V on the grounds that Plaintiffs lack
Article III standing. Additionally, as we have discussed,
DHS now argues that Plaintiffs also lack standing to
challenge the portion of Count II relating to DACA. See
United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.
1997) (“[T]he jurisdictional issue of standing can be raised at
any time . . . .”). Plaintiffs’ theory was (and remains) that
they have standing because DHS administers immigration
laws and programs that result in population growth, and
7 This is not to say that, for example, an “employment-based
immigration program” does not exist in the sense that an individual rule
or regulation might “apply[] some particular measure across the board” to
an alien’s ability to enter the country based on his or her employment
status. Nat’l Wildlife Fed’n, 497 U.S. at 890 n.2. But as the Court
explained in National Wildlife, challenging such a specific rule or
regulation (that is otherwise final) is “quite different from permitting a
generic challenge to all aspects of the ‘. . . program.’” Id. Stated
otherwise, challenging a particular rule with broad application is a far cry
from attempting to challenge all rules relating to one subject matter in the
aggregate. The latter is not sufficient for review under the APA.

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population growth, in turn, has a negative impact on the
environment in which Plaintiffs claim an interest. Plaintiffs
appeal the district court’s holding in its entirety.
Article III’s standing requirements are well-established.
Plaintiffs must show that (1) they “have suffered an injury in
fact” that is (a) “concrete and particularized” and (b) “actual
or imminent, not conjectural or hypothetical”; (2) the injury
is “fairly traceable to the challenged action of the defendant”;
and (3) it is “likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up).8
The doctrine of standing has its origins in separation of
powers, see Allen v. Wright, 468 U.S. 737, 750 (1984)9, and
“confines the federal courts to a properly judicial role,”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Because “NEPA itself does not mandate particular results,
but simply prescribes the necessary process” by which an
agency considers the impact of its proposed action on the
environment, Methow Valley Citizens Council, 490 U.S. at
350, Plaintiffs can only claim procedural injury. That is,
Plaintiffs cannot argue (and they do not) that had DHS
complied with NEPA, DHS would have enforced the
immigration laws differently. Rather, Plaintiffs allege only
that compliance with NEPA was required and preparation of
8 The parties dispute whether one of the organizational Plaintiffs,
Californians for Population Stabilization (CAPS), has standing to sue in
its own right. In light of our resolution of this case, we do not address this
issue.
9 Abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 127–28 (2014).

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an EIS might have affected DHS’s decisions. This adds a
layer to our analysis. “[P]rocedural injuries frequently suffice
for standing in the NEPA context. . . . [But] [a] free-floating
assertion of a procedural violation, without a concrete link to
the interest protected by the procedural rules, does not
constitute an injury in fact.” Ashley Creek, 420 F.3d at 938.
To satisfy the injury-in-fact element for a procedural
claim, Plaintiffs must (1) “show that the procedures in
question are designed to protect some threatened concrete
interest of [Plaintiffs] that is the ultimate basis of [their]
standing”; and (2) “establish the reasonable probability of the
challenged action’s threat to [their] concrete interest.”
Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d
961, 969 (9th Cir. 2003) (cleaned up). We have “described
[the] concrete interest test as requiring a geographic nexus
between the individual asserting the claim and the location
suffering an environmental impact.” Id. at 971 (citation and
internal quotation marks omitted) (alteration in original). As
to the reasonable probability showing, “[e]nvironmental
plaintiffs seeking to enforce a procedural requirement . . . can
establish standing without meeting all the normal standards
for immediacy.” Id. at 972 (cleaned up).
“Once a plaintiff has established an injury in fact under
NEPA the causation and redressability requirements are
relaxed.” W. Watersheds Project v. Kraayenbrink, 632 F.3d
472, 485 (9th Cir. 2011) (citation omitted). This is so
because environmental plaintiffs cannot show that
compliance with NEPA would have changed the agency’s
decisions—the agency may decide that “other values
outweigh the environmental costs,” Methow Valley Citizens
Council, 490 U.S. at 350—only that the agency had to
consider the environmental calculus in its decision. But

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environmental plaintiffs must make some showing of how the
agency’s failure to account for environmental consequences
affects them, even if the environmental effects might not be
realized “for many years.” Defs. of Wildlife, 504 U.S. at 572
n.7. The environmental plaintiff also must be able to show
that if the agency agreed that environmental harms flowed
from its decision, that the agency was capable of redressing
those harms.
Where, as here, an “asserted injury arises from the
government’s allegedly unlawful regulation (or lack of
regulation) of someone else, much more is needed” to
demonstrate causation and redressability. Id. at 562. In that
case, the plaintiffs must “adduce facts showing that [the
choices of independent actors not before the courts] have
been or will be made in such manner as to produce causation
and permit redressability of injury.” Id. In such
circumstances, involving independent actors, the Court has
cautioned that “standing is not precluded, but it is ordinarily
substantially more difficult to establish.” Id. (citation and
internal quotation marks omitted). And, as we saw in the
prior section, “a plaintiff [asserting a procedural harm] raising
only a generally available grievance about government . . .
and seeking relief that no more directly and tangibly benefits
him than it does the public at large[,] does not state an Article
III case or controversy.” Id. at 573–74.
With these principles in mind, we are prepared to consider
Plaintiffs’ standing to bring their remaining claims.
1. Count II (DACA)
In June 2012, then-DHS Secretary Janet Napolitano
issued a memorandum outlining a policy to defer removal

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proceedings for two years (subject to renewal) for individuals
who came to the United States as children, met certain
eligibility criteria, and cleared a background check. This
deferred action policy became known as Deferred Action for
Childhood Arrivals or DACA. Plaintiffs argue that they have
standing to challenge DACA because, by allowing
individuals who entered the country illegally to remain with
federal approval, DACA both added “more settled
population” when it was implemented in 2012 and now
entices future unlawful entry. Neither theory holds water.10
Turning first to Plaintiffs’ enticement theory, we note that
the D.C. Circuit has rejected a similar theory of standing in
the context of a challenge to DACA. In Arpaio v. Obama,
797 F.3d 11, 18 (D.C. Cir. 2015), former Maricopa County
Sheriff Joseph Arpaio sued to enjoin DACA and a second
deferred action policy for parents of U.S. citizens and lawful
permanent residents (“Deferred Action for Parents of
Americans,” or DAPA). Id. at 17–18. As relevant here,
Sheriff Arpaio argued that he had standing because “deferred
action will act as a magnet drawing more undocumented
aliens than would otherwise come across the Mexican border
into Maricopa County, where they will commit crimes” that
he would then need to police. Id. at 14. The court held that
Sheriff Arpaio could not establish causation because his
theory of standing rested on the assumption that aliens
outside of the United States would learn of DACA and
10 Although we decide this issue on the failure of causation, we note
that DHS does not contest that Plaintiffs have met the injury-in-fact
requirement—that is, whether environmental degradation follows from
overpopulation. However, because Plaintiffs have plainly not established
causation, we need not address the injury-in-fact element with respect to
Plaintiffs’ DACA challenge. Nor do we reach, for any of Plaintiffs’
claims, the question of redressability.

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DAPA, mistakenly believe they might benefit from such
policies in the future, and then, relying on their own
conjectures, enter the United States unlawfully. Id. at 19–20.
The court reasoned that “[e]ven if the causal links in that
attenuated chain were adequately alleged . . . . the law. . .
does not confer standing to complain of harms by third parties
the plaintiff expects will act in unreasonable reliance on
current governmental policies that concededly cannot benefit
those third parties.” Id. at 20. Moreover, as the court pointed
out, Arpaio’s claimed injury (increased law enforcement
expenses) not only depended on future entrants’ mistaken
understanding and unlawful entry, but on the supposition that
those entrants would commit crimes in Maricopa County. Id.
None of the consequences predicted by Sheriff Arpaio
resulted from anyone actually subject to DACA or DAPA,
but from “unrelated third parties.” Id. The court affirmed the
district court’s dismissal of Sheriff Arpaio’s complaint for
lack of Article III standing. Id. at 25.
As in Arpaio, Plaintiffs’ standing theory hinges on the
unreasonable response of third parties to DACA made
through allegations that lack sufficient factual support. The
2012 DACA Memorandum only applies to children who have
been in the United States for the previous five years. Yet
Plaintiffs ask us to assume that aliens outside the United
States who are, by definition, ineligible for DACA relief
would learn about the policy; mistakenly believe it applicable
to them or that they might obtain similar relief from a future
administration; come to the United States based on their
misconceptions; and permanently settle near Plaintiffs,
thereby increasing the population and straining environmental
resources. The attenuation in this chain of reasoning,
unsupported by well-pleaded facts, is worthy of Rube
Goldberg. Even were we to assume “that inaccurate

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knowledge of DACA could have provided some
encouragement to those who crossed the southern border, the
Supreme Court’s precedent requires more than illogic or
unadorned speculation before a court may draw the inference
[Plaintiffs] seek[].” Id. at 21 (citation and quotation marks
omitted). Plaintiffs alleged no facts supporting their
allegations that DACA caused illegal immigration and was
not merely one of the “myriad economic, social, and political
realities” that might influence an alien’s decision to “risk[]
life and limb” to come to the United States. Id.
In an effort to distinguish their allegations from those in
Arpaio, Plaintiffs rely on an affidavit from their expert,
Jessica Vaughan, in which she claims that, as of 2014, DACA
and “other discretionary actions by DHS have had the effect
of significantly increasing the number of illegal border
crossings, which has resulted in significant environmental
impacts.” But Vaughan does not detail any facts linking the
alleged influx in immigration to DACA. To the contrary, she
attributes the dramatic influx of “unaccompanied minors and
families . . . that began around 2012 and continues today” to
“policy changes that occurred in 2008 (the Trafficking
Victims Protection and Reauthorization Act) and 2009
(Credible Fear Parole).” Plaintiffs’ reliance on an unreleased
Border Patrol intelligence report from 2014 that purportedly
“reveals that 95% [of migrants interviewed] stated that their
‘main reason’ for coming was because they had heard they
would receive . . . permission to stay,” similarly lacks any
specific reference to DACA sufficient to confer standing.
Although we must accept Plaintiffs’ factual allegations as
true at the pleading stage, Plaintiffs have failed to allege even
the barest of connections between DACA and an increase in
immigration.

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Plaintiffs also attempt to distinguish Arpaio by pointing
out that Sheriff Arpaio did not allege NEPA violations. That
is true, but irrelevant. The D.C. Circuit rejected Sheriff
Arpaio’s claim with the understanding that he would be
“entitled to proceed based on a lenient assessment of his
alleged concrete injury [] because his complaint includes a
claim of procedural injury.” Arpaio, 797 F.3d at 21.
Although causation and redressability requirements are
relaxed when a plaintiff has established injury in fact under
NEPA, the causation requirement remains implicated “where
the concern is that an injury caused by a third party is too
tenuously connected to the acts of the defendant.” Citizens
for Better Forestry, 341 F.3d at 975 (citations omitted).
Stated otherwise, as in Arpaio, a claim of procedural injury
does not relieve Plaintiffs of their burden—even if
relaxed—to demonstrate causation and redressability. See
Wash. Envt’l Council v. Bellon, 732 F.3d 1131, 1144 (9th Cir.
2013) (refusing to infer a causal connection simply because
the plaintiffs sought “to enforce a specific regulatory
obligation”). Here, Plaintiffs’ speculation “lengthens the
causal chain beyond the reach of NEPA.” Metro. Edison Co.
v. People Against Nuclear Energy, 460 U.S. 766, 775 (1983).
Nor can Plaintiffs establish standing on their alternative
theory that DACA’s enactment added “more settled
population” in 2012 by temporarily reducing the number of
aliens in the United States who might have otherwise been
removed. Under government policy, the children eligible for
DACA are already “low priority cases” for removal; thus,
Plaintiffs can only speculate that changes to DACA (that
might flow from a NEPA analysis) would actually result in
the removal of DACA beneficiaries, thereby reducing the
U.S. population. Even without a declared DACA policy,
DHS retains sole discretion over how to prioritize future

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removal proceedings. “There is no redressability, and thus no
standing, where (as is the case here) any prospective benefits
depend on an . . . actor who retains broad and legitimate
discretion the courts cannot presume either to control or to
predict.” Glanton ex rel. ALCOA Prescrip. Drug Plan v.
AdvancePCS Inc., 465 F.3d 1123, 1125 (9th Cir. 2006)
(citation and quotation marks omitted).
2. Count III
In Count III, Plaintiffs bring a facial challenge to CATEX
A3. As we discussed in Part I, CEQ regulations permit
agencies to establish categories of actions that “do not
individually or cumulatively have a significant effect on the
human environment” and, accordingly, do not require an EA
or an EIS. 40 C.F.R. § 1508.4. Consistent with CEQ’s
regulations, DHS has published a list of categorical
exemptions in an appendix in its Manual. CATEX A3
exempts from EIS and EA requirements the:
Promulgation of rules, issuance of rulings or
interpretations, and the development and publication of
policies, orders, directives, notices, procedures, manuals,
advisory circulars, and other guidance documents of the
following nature:
(a) Those of a strictly administrative or procedural nature;
(b) Those that implement, without substantive change,
statutory or regulatory requirements;
(c) Those that implement, without substantive change,
procedures, manuals, and other guidance documents;

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(d) Those that interpret or amend an existing regulation
without changing its environmental effect;
(e) Technical guidance on safety and security matters; or
(f) Guidance for the preparation of security plans.
We are hard-pressed to see how this categorical
exemption injures Plaintiffs. The Supreme Court’s decision
in Summers v. Earth Island Institute, 555 U.S. 488 (2009), is
on point. In that case, conservation groups challenged
amendments to the U.S. Forest Service’s manual that
categorically excluded certain Forest Service projects from
the requirement to file an EIS or EA. Id. at 490–91. The
plaintiffs settled a portion of the suit but continued to
challenge “the regulation in the abstract.” Id. at 494.
Because the plaintiffs “identified no other application of the
invalidated regulations that threatens imminent and concrete
harm to the interests of their members,” the Court held the
plaintiffs lacked standing. Id. at 495. In so holding, the
Court emphasized that a procedural injury alone does not
constitute an injury in fact. Id. at 496. We too have
explained that “[a] concrete and particular project must be
connected to the procedural loss.” Wilderness Soc’y, Inc. v.
Rey, 622 F.3d 1251, 1260 (9th Cir. 2010).
Plaintiffs make no attempt in Count III to tie CATEX A3
to any particular action by DHS. They assert, as the Court
put it, “a procedural right in vacuo,” and that is “insufficient
to create Article III standing.” Earth Island Inst., 555 U.S.
at 496.

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3. Count IV
In Count IV, trying to avoid their errors in Count III,
Plaintiffs argue that DHS’s application of CATEX A3 to the
DSO, STEM, AC21, and International Entrepreneur Rules
was improper because these rules all “contribute to
immigration-induced population growth.”
We begin with the DSO and STEM rules, which, as we
explained in Part I, pertain to opportunities for foreign
students. Neither rule authorizes permanent immigration;
nevertheless, Plaintiffs insist that the two rules lead to
permanent population growth by encouraging additional
foreign students to come to the United States. Their claim
suffers from some of the same convoluted reasoning as their
DACA claim, and unlike the DACA claim, the district court
ruled against Plaintiffs on summary judgment. Once a case
has proceeded to that stage, Plaintiffs “can no longer rest on
. . . ‘mere allegations,’ but must set forth by affidavit or other
evidence ‘specific facts.”’ Defs. of Wildlife, 504 U.S. at 562
(quoting Fed. R. Civ. P. 56(e)).
Plaintiffs offer no evidence to support their theory.
Instead, their expert, Vaughan, simply opines that large
numbers of nonimmigrant visa holders settle permanently in
the United States without identifying how many—or whether
any—of those aliens obtained visas under the DSO and
STEM Rules. Plaintiffs request that we take judicial notice
of “the fact that a large number of the schools participating in
the Student and Exchange Visitor Program . . . are in
California.” But, even if true, this fact is irrelevant, as
Plaintiffs have not shown a reasonable probability that the
DSO and STEM rules cause population growth anywhere in

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a manner that affects Plaintiffs’ interests. Plaintiffs’
conjecture does not establish their injury in fact.
Plaintiffs also cannot establish causation. Where
causation “depends on the unfettered choices made by
independent actors not before the courts,” Plaintiffs bear the
burden to “adduce facts showing that those choices have been
or will be made in such manner as to produce causation and
permit redressability of injury.” Defs. of Wildlife, 504 U.S.
at 562 (citations omitted). Not only do Plaintiffs fail to offer
any evidence showing that aliens holding visas under the
DSO or STEM rules decide to settle permanently in the
United States—via the legal process or by overstaying their
visa—but Plaintiffs also fail to show that these aliens would
do so because of the challenged rules. As with the DACA
claim, any number of variables might influence an alien’s
independent decision to resettle. See Arpaio, 797 F.3d at 21.
Plaintiffs provide no evidence to the contrary.
Plaintiffs insist that they have met their burden because
they need only show that permanent population growth is a
“predictable effect” of the STEM and DSO rules. But the
degree of predictability matters, and Plaintiffs have not come
forward with any relevant evidence. In Department of
Commerce v. New York, 139 S. Ct. 2551, 2563–64 (2019),
eighteen states brought suit to enjoin the use of a citizenship
question on the 2020 census. They alleged that the question
would discourage noncitizens from responding to the census
and that the resulting population count would affect, among
other things, their representation in Congress and receipt of
federal funds. Id. at 2565. The government contended that
any harm resulted from the independent decisions of third
parties, who would, mistakenly, believe they might be
prosecuted if they answered truthfully about their non-citizen

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status. Id. at 2565–66. The Court, unanimously, held that the
plaintiffs had satisfied “their burden of showing that third
parties will likely react in predictable ways to the citizenship
question.” Id. at 2566. Plaintiffs had presented evidence at
trial that these groups “historically responded to the census at
lower rates than other groups.” Id. The Court held that the
district court “did not clearly err in crediting the Census
Bureau’s theory that the discrepancy is likely attributable at
least in part to noncitizens’ reluctance to answer a citizenship
question.” Id. The Court explained that the plaintiffs’ theory
of standing did not “rest on mere speculation about the
decisions of third parties; it relie[d] instead on the predictable
effect of Government action on the decisions of third parties.”
Id.
The Court has since shed further light on what a plaintiff
must do to meet his burden to show “that third parties will
likely react in predictable ways.” California v. Texas, No.
19-840, slip. op. at 11–14 (U.S. June 17, 2021) (citing Dep’t
of Commerce, 139 S.Ct. at 2566). In that case, eighteen states
and two individuals sought to enjoin the minimum essential
coverage requirement of the Patient Protection and
Affordable Care Act. Id. slip op. at 1. As amended by
Congress in 2019, the Act set all penalties for those who
failed to meet its minimum coverage requirements to zero.
Id. slip op. at 2–3. The state plaintiffs claimed the challenged
provision harmed them by leading more individuals to enroll
in state-operated or state-sponsored insurance programs. Id.
slip op. at 10. But the Court found the state plaintiffs’
proffered evidence did not establish such a causal
connection—only four of their twenty-one affidavits
attributed added state costs to the minimum essential
coverage requirement, and all of the affidavits referred “to
that provision as it existed before Congress removed the

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penalty.” Id. slip op. at 12. Nor was the Court persuaded by
the state plaintiffs’ reliance on a “predictive sentence” in a
2017 Congressional Budget Office Report that did not
“adequately trace the necessary connection between the
provision without a penalty and new enrollment in [state
programs].” Id. slip op. at 13–14.
Like the state plaintiffs in California v. Texas, Plaintiffs
have offered no evidence showing that population growth is
a predictable effect of the DSO and STEM rules. Vaughan’s
affidavit provides only general population increase numbers;
her report does not separate the F-1, F-2, and M-2 visas (the
subject of the DSO and STEM rules) from all the other
nonimmigrant visas, and she cannot draw any line connecting
the DSO and STEM rules to population increase. Try as they
may, Plaintiffs cannot rely on their ipse dixit to establish
standing.
We turn next to the AC21 Rule, which “largely conforms
DHS regulations to longstanding DHS policies and practices”
aimed at providing “greater flexibility and job portability to
certain nonimmigrant workers, particularly those who have
been sponsored for [legal permanent resident] status.” DHS
intended the rule to “better enable U.S. employers to employ
and retain high-skilled workers who are beneficiaries of
employment-based immigrant visa (Form I-140) petitions.”
Seizing on DHS’s use of the word “retain,” Plaintiffs argue
that this rule threatens the environment by encouraging
immigration growth. The problem with Plaintiffs’ claim is
that, as the district court noted, the AC21 Rule generally only
applies to immigrants who already hold EB-1, EB-2, or EB-3
visas—that is, aliens who have been present in the United
States for a number of years. Absent a concrete link between
the AC21 Rule and population growth, then, Plaintiffs cannot

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show injury in fact. Nor can Plaintiffs establish causation.
As with DACA, the DSO Rule, and the STEM Rule, any
increase in immigration that may result from the AC21 Rule
would be a product of independent, third-party
decisionmaking and not fairly traceable to the AC21 Rule
itself.
Finally, we address Plaintiffs’ standing to challenge the
International Entrepreneur Rule. This rule is explicitly
designed to encourage aliens to come to the United States;
however, it only provides for entry on a temporary basis.
Plaintiffs assert that this particular rule results in population
growth. This evidence might be difficult to come by given
that, in explaining its decision not to conduct NEPA review,
DHS stated that “[f]ewer than 3,000 individuals, an
insignificant number in the context of the population of the
United States, are projected to receive parole through this
program.” International Entrepreneur Rule, 82 Fed. Reg.
5,238, 5,284 (Jan. 17, 2017) (to be codified at 8 C.F.R. pts.
103, 212, 274a). Furthermore, Plaintiffs have failed to show
that any aliens granted parole under this rule settle, either
temporarily or permanently, near Plaintiffs in numbers that
materially contribute to population growth. See Ashley
Creek, 420 F.3d at 938. Finally, even assuming injury in fact,
Plaintiffs cannot establish causation. As with the other
challenged rules, Plaintiffs have not shown that aliens
admitted under the International Entrepreneur Rule
permanently stay in the United States because of the rule.
In a last-ditch effort, Plaintiffs argue that they have
standing to challenge all four rules because former CEQ
regulations required agencies to consider cumulative impacts
on the environment. See 40 C.F.R. § 1508.7 (repealed Sept.
14, 2020). Plaintiffs claim that the challenged rules have a

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“significant cumulative effect on the human environment”
and it was therefore “improper” for DHS to exempt these
rules from NEPA review. But any “cumulative effect”
analysis required by NEPA does not bear on whether
Plaintiffs have standing to challenge these rules. We may not
find standing based on the Plaintiffs’ cumulative speculation
about their injuries in fact.
4. Count V
Finally, Plaintiffs challenge the sufficiency of the EAs
and FONSIs issued in relation to President Obama’s
Response to the Influx of Unaccompanied Alien Children
Across the Southwest Border. Recall that DHS prepared a
programmatic EA for the UAC Response and a supplemental
EA (pursuant to the UAC Response) before constructing a
facility near Dilley, Texas to house temporarily up to 2,400
women and children detainees. DHS ultimately issued a
FONSI in both instances.
At the outset, given that both the UAC Response and the
Texas facility were responses to an influx in immigration,
Plaintiffs face an uphill battle to show that these two actions
cause illegal immigration. Plaintiffs’ experts do not attribute
an increase in illegal immigration to the UAC Response or
the Texas facility. For example, Vaughan’s citation of a 2014
Washington Times newspaper article attributing a surge in
illegal immigration to U.S. policy does not satisfy Plaintiffs’
burden, as the article does not support a claim that
infrastructure improvements are a reason that migrants enter
the United States. Nor is Vaughan’s general observation that
“real or even perceived change[s] to enforcement policies . . .
can significantly affect the number of people attempting to
cross the border illegally” sufficient. Plaintiffs must connect

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a “concrete and particular project” to the “procedural loss” to
establish standing. See Wilderness Soc’y., 622 F.3d at 1260.
To the extent Plaintiffs challenge the FONSI related to the
Texas facility, Plaintiffs also lack a geographic nexus to do
so. Several individual Plaintiffs and members of Plaintiff
organizations provided declarations describing the
environmental damage along the southwest border in Arizona
and New Mexico. That none of the declarants actually live in
Texas underscores their lack of standing. In Ashley Creek,
we found no geographic nexus where the plaintiff challenged
the BLM’s EIS for a proposed mining project that was 250
miles from plaintiffs’ phosphate reserves. 420 F.3d at
938–39. We rejected the plaintiff’s theory, under which “any
owner of a phosphate mine, whether located in Alaska, Utah,
or Florida, would have standing to challenge the EIS.” Id. at
939. Yet that is precisely the theory Plaintiffs advance
here—under Plaintiffs’ framework, anyone living near Texas
would have standing to challenge the EA and FONSI
prepared for the Dilley facility. That is beyond the scope
contemplated by Article III. See Defs. of Wildlife, 504 U.S.
at 572 n.7.
Finally, causation also presents a problem for Plaintiffs.
As with the DACA policy, we know of no evidence in the
record indicating that either the UAC Response or the
building of the Dilley facility entices aliens to come to the
United States. Plaintiffs’ enticement theory is even less
compelling in this context because, unlike DACA, neither
action offers non-citizens an opportunity to remain in the
United States. If an alien were granted relief after his or her
stay in the Texas (or another) facility, that would be the result
of a separate DHS action, having nothing to do with these
policies. And if an alien decides to settle illegally, such a

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decision would be attributable to “the myriad” considerations
beyond the UAC Response or the Dilley housing facility.
Arpaio, 797 F.3d at 21.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs cannot challenge
DHS’s actions under NEPA or the APA. The judgment of the
district court is AFFIRMED.

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