“culmination of President’s Trump’s oft-stated commitments …to punish and disparage people with Mexican roots”
New York Attorney General Eric Schneiderman, in a Facebook live event, announced that New York and 14 other states plus the District of Columbia have filed a Complaint attempting to halt the phasing out of the DACA program as announced yesterday by U.S. Attorney Jeff Sessions.
The plaintiffs are New York, Massachusetts, Washington, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia.
The heart of the lawsuit is the claim that Trump is motivated by anti-Mexican animus:
3. More than 78 percent of DACA grantees are of Mexican origin, See Ex. 1 (USCIS, Consideration of Deferred Action for Childhood Arrivals Fiscal Years 2012-2017, June 8, 2017), which is more than double the percentage of people of Mexican origin that comprise of the overall foreign-born population (29 percent) of the United States. See Ex. 2 (U.S. Census Bureau, The Foreign-Born Population in the United States).
4. Ending DACA, whose participants are mostly of Mexican origin, is a culmination of President’s Trump’s oft-stated commitments—whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage people with Mexican roots. The consequence of the President’s animus-driven decision is that approximately 800,000 persons who have availed themselves of the program will ultimately lose its protections, and will be exposed to removal when their authorizations expire and they cannot seek renewal. The individuals who have relied on DACA are now more vulnerable to removal than before the program was initiated, as they turned over sensitive information to the federal government in their applications. Despite the federal government’s repeated promises that it would not use such information to conduct enforcement measures, the DHS Memorandum does not explain how the government will keep that information secure, nor does it provide any assurances that immigration enforcement agents will not use such information to find and remove those who applied for DACA.
Much as in the Travel Order cases, there is a litany of Trump statements recited for the purpose of showing that prejudice is behind the actions taken, including these examples among others:
239. Despite these various and repeated promises to DACA grantees made by the federal government and by President Trump, including a recognition of DACA’s value and successes, President Trump has a long history of disparaging Mexicans, who comprise the vast majority of DACA grantees.
240. In announcing his presidential campaign, then-candidate Trump compared Mexican immigrants to rapists, stating: “When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” Ex. 35 (Washington Post, Transcript of Donald Trump’s Presidential Bid Announcement, June 16, 2015).
241. During the first Republican presidential debate, then-candidate Trump again restated his distaste for immigrants from Mexico: “The Mexican government is much smarter, much sharper, much more cunning. And they send the bad ones over because they don’t want to pay for them. They don’t want to take care of them.” Ex. 36 (Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News, Aug. 6, 2015.
242. Soon after, on August 25, 2015, then-candidate Trump refused to answer questions about immigration from Jorge Ramos, a Mexican-American and the top news anchor at Univision, a Spanish-language news channels. After sending his bodyguard to physically remove Mr. Ramos, then-candidate Trump derisively told Mr. Ramos to “Go back to Univision.” Ex. 37 (Phillip Rucker, First, Trump booted Univision anchor Jorge Ramos out of his news conference. Then things got interesting, The Washington Post, Aug. 25, 2015).
The pardoning of Joe Arpaio also was mentioned as evidence of Trump’s animosity towards Mexicans:
249. On August 25, 2017, President Trump pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal judge’s order to stop racially profiling Latinos. See Ex. 46 (Julie Hirschfield Davis and Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, The N.Y. Times, Aug. 25, 2017).
Most of the Complaint is devoted to explaining why each of the states and DC have a legal interest (standing) to sue. That’s an obvious problem, and expect the same arguments used as to the Travel Order, i.e., this affects our university enrollments and so on.
The legal claims are Fifth Amendment – Equal Protection (First Cause of Action):
271. The DHSMemorandum—together with the President’s numerous statements about his intentions towards Mexicans, who comprise the largest population of DACA grantees—target individuals for discriminatory treatment based on their national origin, without lawful justification.
272. The DHS Memorandum was motivated, at least in part, by a discriminatory motive and/or a desire to harm a particular group.
273. The discriminatory terms and application of the DHS Memorandum cannot be sufficiently justified by federal interests.
Fifth Amendment – Due Process (Second Cause of Action)
277. The Due Process Clause of the Fifth Amendment requires that immigration enforcement actions taken by the federal government be fundamentally fair.
278. Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.
And three counts alleging violation of required administrative procedures:
282. The Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. In implementing the DHS Memorandum and rescinding DACA with minimal formal guidance, federal agencies have taken unconstitutional and unlawful action, as alleged herein, in violation of the AdministrativeProcedure Act.
283. In implementing the DHS Memorandum, federal agencies have acted arbitrarily and capriciously, and otherwise not in accordance with law, and have abused their discretion, in violation of the APA.
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286. The APA, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct
formal rule making before engaging in action that impacts substantive rights.
287. DHS is an “agency” under the APA. 5 U.S.C. § 551(1).
288. The actions that DHS has taken to implement the DHS Memorandum are “rules”
under the APA. 5 U.S.C. § 551(4).
289. In implementing the DHS Memorandum, federal agencies have changed the substantive criteria by which individuals DACA grantees work, live, attend school, obtain credit, and travel in the United States. Federal agencies did not follow the procedures required by the APA before taking action impacting these substantive rights.
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295. The Regulatory Flexibility Act, 5 U.S.C. §§ 601-612 (“RFA”), requires federal
agencies to analyze the impact of rules they promulgate on small entities and publish initial and
final versions of those analyses for public comment. 5 U.S.C. §§ 603-604.
296. “Small entities” for purposes of the RFA includes small businesses, small
nonprofits, and small governmental jurisdictions. 5 U.S.C. § 601(6).
297. The actions that DHS has taken to implement the DHS Memorandum are “rules”
under the RFA. 5 U.S.C. § 601(2).
298. The actions that DHS has taken to implement the DHS Memorandum are likely to
have a significant economic impact on a substantial number of small entities. 5 U.S.C. §
299. Defendants have not issued the required analyses of DHS’s new rules.
In a rational legal world, this lawsuit would have zero chance of success.
It is highly questionable whether the states have the right to sue, but considering how the lower courts in the Travel Order cases have played fast and loose with the issue of standing, who knows.
Additionally, there is no substantive right pleaded that is violated. There was no right to the administrative decision to implement DACA, and it purported to be an exercise of prosecutorial discretion not creating any substantive rights.
This was showboating. But in the age of Trump Derangement Syndrome, the law seems to be the first victim.DONATE
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