Nineteen States and the University of California File Lawsuits Against Trump and the Federal Government for the Rescission of DACA

On September 5, 2017, the U.S. Department of Homeland Security (“DHS”) issued a Memorandum ending Deferred Action for Childhood Arrivals (“DACA”).  DACA protected about 800,000 young people from deportation and allowed these “dreamers” to live, work, study, and continue to contribute to their communities without fear of arrest and deportation.

On September 6, 2017, 15 states (New York, Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia) filed a lawsuit against Donald Trump, DHS, Acting Secretary of DHS Elaine Duke (“Duke”), U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and the USA, for rescinding DACA. 

On September 8, 2017, the Regents of the University of California and its President, Janet Napolitano, filed a similar lawsuit against Duke.  On September 11, 2017 California’s Attorney General, Xavier Becerra, along with the States of Maine, Maryland and Minnesota filed a third lawsuit alleging similar violations of law.

The lawsuits allege the rescission violates the following federal laws:

  • The U.S. Constitution’s 5th Amendment equal protection and due process clauses.
  • The Administrative Procedure Act (“APA”) requirements that a decision like this must go through a formal rulemaking process and receive sufficient guidance to avoid being arbitrarily made.
  • The New York lawsuit alleges a violation of the Regulatory Flexibility Act requiring federal agencies analyze impact on small entities such as small business and non-profits.
  • The California lawsuit alleges the federal government must be prohibited from using DACA recipients’ information against them in future immigration proceedings since it made repeated promises from DACA’s creation that it would not take such action, and DACA recipients relied on those promises when applying for DACA.

In summary, the lawsuits request the following relief:

  • Declare the September 5, 2017 DHS Memorandum unconstitutional and illegal
  • Declare the actions taken to implement the Memorandum unlawful under APA and RFA
  • Stop the rescission
  • Stop Trump and the government from using DACA recipients’ information to identify, apprehend, detain, or deport any DACA recipient or their family members
  • Additional relief as the interest of justice requires

While these lawsuits are pending, the rescission continues to move forward.  If you have questions about what that means for DACA recipients and their families, see a summary here.  No new DACA applications will be received effective September 5, 2017.  Dreamers who have DACA status that expires between September 5, 2017 and March 5, 2018 must submit renewal applications for DACA and work permits prior to October 5, 2017 for the renewal to be processed.
Please contact your immigration or labor attorney with further questions. 

By Tiffany Crain Altamirano | October 4, 2017

Legal Developments