Law Student Katie Kelly Commentary: The Various Claims Challenging the Rescission of DACA
This is a guest post by third year UC Davis law student Katie Kelly:
The Trump administration disappointed millions of people across the United State on September 5, when it announced its rescission of President Obama’s Deferred Action for Childhood Arrivals (DACA) program. The effective date of the rescission was delayed for six months to provide Congress time to pass adequate immigration legislation. Several lawsuits have been filed challenging the legality of the action. Details of those suits and the claims therein are as follows, chronologically:
New York et al. v. Trump et al.
On September 6, fourteen states and the District of Columbia joined New York in bringing a suit against President Trump and Elaine Duke, in their official capacities, and the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and the United States. The States, on behalf of their respective citizens and DACA beneficiaries, are claiming the following violations:
(1) Equal Protection provided by the Due Process Clause of the Fifth Amendment for racial discrimination through the rescission. This claim rests on Donald Trump’s generalizations of and racist comments about Mexicans both during his campaign and his presidency. The States further allege that President Trump’s recent pardon of former Maricopa County Sheriff Joe Arpaio displays racial animus, because Arpaio was found in criminal contempt for continuing to racially profile, despite being ordered to cease the practice.
(2) Due Process Clause of the Fifth Amendment for potentially using information obtained during the DACA registration against DACA registrants. This claim rests on the fact that during registration for DACA, applicants provide identifying information to the government in reliance of governmental assurances that the information will not be used against the applicant in future immigration proceedings.
(3) Administrative Procedure Act for abuse of discretion and acting arbitrarily and capriciously in rescinding DACA with minimal formal guidance;
(4) Administrative Procedure Act for failing to complete a notice-and-comment process before changing a rule that will impact substantive rights; and
(5) Regulatory Flexibility Act for failing to issue required analysis of the impacts of rules on small entities.
Regents of the University of California & Janet Napolitano v. DHS & Elaine Duke
The Regents of the University of California and Janet Napolitano, President of UC, filed suit against DHS and Elaine Duke on September 8, on behalf of the UC and all currently enrolled students at the university. UC asserts New York’s third and fourth claims, for violations of the Administrative Procedure Act. Plaintiffs also assert a third cause of action for violation of Procedural Due Process under the Fifth Amendment, claiming that the rescission denies the UC and its students constitutionally-protected interests without notice or the opportunity to be heard.
California et al. v. DHS et al.
California, joined by Maine, Maryland, and Minnesota, filed suit against DHS, Elaine Duke, and the US on September 11. The States, on behalf of their citizens and DACA beneficiaries, are seeking declaratory and injunctive relief based on claims that echo those brought by New York. Specifically, California’s complaint lists all five causes of actions iterated in the New York lawsuit above, based on substantially similar facts. In addition, California states a claim of equitable estoppel based on the fact that DACA registrants were given assurances that information collected from them would not be used against them; the States are seeking the Defendants to be equitably estopped from using this information for any purposes other than those originally expressed by DACA.
City of San Jose v. Trump et al.
The city of San Jose filed suit against Donald Trump, Elaine Duke, and the US on September 14, on behalf of the city and DACA recipients therein. The suit alleges claims similar to the first and fourth claims in New York, above, for violation of equal protection under the Fifth Amendment and the procedural requirements under the Administrative Procedure Act.
National Association for the Advancement of Colored People v. Trump et al.
NAACP filed suit on September 18, on behalf of the people of color eligible for DACA – about 95% of all DACA registrants. NAACP has brought their claims against Donald Trump, Jeff Sessions, Elaine Duke, USCIS, ICE, DHS, and the US. NAACP has alleged the same claims brought in California, above. Among other relief, the NAACP is seeking vacation of the rescission and enjoining Defendants from using information obtained through DACA registry against registrants, their families, or their employers.
Garcia et al. v. United States of America et al.
This suit was also filed on September 18, on behalf of six DACA recipients – Dulce Garcia, an attorney in San Diego; Viridiana Chabolla Mendoza, a law student at UC IrvineUC San FranciscoNew York, above; a procedural due process claim similar to the one brought by the University of California, above; the equitable estoppel claim, as brought in California, above; and a claim for declaratory judgment, under the Declaratory Judgment Act. The government claims that the basis for its rescission is that DACA is unlawful; with the declaratory judgment claim, Plaintiffs seek a declaration that the program is, in fact, lawful.
Batalla Vidal v. Baran et al.
Make the Road Work (a nonprofit organization seeking to empower immigrant, Latino, and working-class communities in New York), the National Immigration Law Center, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School originally filed this suit on August 25, 2016, challenging the decision in United States v. Texas to block an expansion of DACA. On September 15, 2017, the Eastern District of New York granted Plaintiff leave to file a second amended complaint, and on September 19, Plaintiffs filed against Elaine Duke, Jeff Sessions, and Donald Trump, for the DACA rescission. Plaintiffs, who now include six DACA recipients and Make the Road New York, are seeking certification as a class. Plaintiffs’ claims mirror the first, third, fourth, and fifth claims brought in New York, above, as well as a procedural due process claim, similarly brought in Regents of UC, above.
Analysis
Of the eight claims brought via the various actions, the equitable estoppel claims will be the first to be dismissed, as equitable estoppel cannot be brought as a stand-alone cause of action. Similarly, Garcia’s declaratory judgment claim will fail as a cause of action, as the Declaratory Judgment Act provides for a remedy for a valid claim, rather than a stand-alone claim.
The Regulatory Flexibility Act claim may also fail. This Act generally applies to regulations directly impacting small entities and has been held not to require an analysis for every indirect effect on small entities. I suspect Plaintiffs are correct that the rescission is a regulation issued by an agency for the purposes of the statute; however, the rescission primarily is targeted toward immigration enforcement, not toward the regulation of small entities. The indirect effects of the rescission on small entities likely will be insufficient to sustain this claim; thus, this claim will fail in court.
The Administrative Procedure Act claims are linked because they both depend on the initial legality of DACA. I agree that there should have been a notice and comment process, in accordance with the Act, prior to the rescission. However, President Obama failed to complete a similar notice and comment process upon signing DACA. Thus, a court could determine that rescinding the executive order without a notice and comment process is valid because it was unlawfully passed without a similar process. On the other hand, the courts could consider the rescission in isolation, refusing to make a finding on the legality of the passage of DACA, as irrelevant to the specific issue of the rescission. A third option courts could take is finding that the notice and comment process was violated in the rescission, regardless of whether it was violated in the passage of DACA – a sort of “two wrongs don’t make a right” approach. In either of these cases, this claim has a chance of succeeding.
The Administrative Procedure Act claim based on abuse of discretion and arbitrary and capricious action is another slippery one. Acting Secretary Duke’s rationale for rescinding DACA was merely that it “is unlawful.” If it is true that DACA is unlawful, the decision to rescind it may not be found to be arbitrary. In order to settle this issue, courts may be compelled to determine if the passage of DACA was lawful in the first place. Conversely, courts could give more weight and consideration to the broad and far-reaching impacts of the rescission to find that the thin rationale given by the administration was inadequate. As such, this claim could go either way.
The Fifth Amendment claims are generally compelling. It is well-established that immigrants in the U.S., whether undocumented or not, are entitled to certain Constitutional rights. Protections under the Fifth Amendment have long fallen within these protected rights. UC’s procedural due process claim has a slim chance of surviving, based on the fact that the UC has invested substantial resources in DACA recipients; however, this claim is tenuous. Since DACA was implemented as an executive order, procedurally, it can be overturned by another executive order by President Trump. The court likely will have to consider whether the UC’s deprivation of its investments in DACA recipients is an impermissible denial of property prohibited under the Fifth Amendment.
The information use claim under the Fifth Amendment provides a stronger argument. As detailed in nearly all of the aforementioned suits, DACA recipients identified themselves and provided personal information to the federal government in reliance on the government’s assurance that the information would not be used against them. To allow the information to be used in deportation proceedings at this point seems fundamentally unfair. In the very least, courts should grant the requested equitable estoppel to disallow this type of use of the information provided by registrants.
Similarly, the equal protection claim under the Fifth Amendment will likely stand and be heard by the respective courts. Considering the fact that President Trump has been forthcoming with derogatory statements about Mexican immigrants, and he ran a substantial portion of his campaign on this type of ideology, Plaintiffs will have ample evidence to present in support of an argument for finding a discriminatory purpose in cancelling DACA. However, the rescission memorandum was penned by Elaine Duke. Plaintiffs may have difficulty imputing the president’s racial animus, as evidenced by his unofficial statements, onto the acting secretary of the DHS. Thus, this claim may fail.
Conclusion
Unfortunately, none of the claims brought challenging the rescission of DACA seems foolproof for the plaintiffs. Optimistic minds, however, hope that this administrative action will compel Congress to take seriously the challenge of passing comprehensive immigration reform. While this decision is a grave disappointment to many people in the US, it has highlighted the great benefit, strength, and contribution that DACA recipients have given to the US and the importance of passing effective legislation to protect these individuals. Executive orders are simply too fragile to provide lasting protection and support for this strong but vulnerable community. And, undoubtedly, they deserve our support and protection.
KJ