Following the issuance of a DHS memorandum rescinding DACA and an FAQ addressing elements of the implementation, several states, universities, and NGOs have filed lawsuits challenging the legality of the DACA rescission and termination. This article summarizes the legal challenges to the DHS rescission and the cases that have been filed to date. The plaintiffs in each case are asking the courts to declare that the DHS rescission memo is unlawful and to stop any implementation of the DACA termination from going forward. Three of the complaints filed also ask the courts to issue injunctions that would prevent DHS from using information provided in DACA applications for enforcement against DACA applicants, their family members, or employers.
On September 6, 2017, 16 states and the District of Columbia filed a lawsuit in the Eastern District of New York. The states are asking the court to find that the DHS memorandum rescinding DACA is unlawful and unconstitutional and to enjoin the federal government from using data gathered for the DACA program in immigration enforcement. The states also argue that the rescission was unlawful under the Administrative Procedure Act (APA) and under the Regulatory Flexibility Act (RFA). They ask the court to enjoin defendants from using information obtained in any DACA application or renewal request to identify, apprehend, detain or deport any DACA applicant or member of DACA applicant’s family, or take any action against DACA applicant’s current or former employer.
The States of California, Maine, Maryland and Minnesota filed a separate lawsuit against DHS in the Northern District of California. Filed on September 11, 2017, the complaint asks the court to declare that the DHS rescission memo is unauthorized and unconstitutional, and that the federal government actions taken to implement the rescission memo were in violation of APA and RFA procedural rules. Plaintiffs seek an injunction to prevent defendants from rescinding DACA or engaging in any action to stop its full and continued implementation. Plaintiffs are also asking the court to stop defendants from using information provided in any DACA request for enforcement against DACA applicants, their family members or employers.
In addition to the State of California’s lawsuit, the University of California has also sued DHS. In a complaint filed on September 8, 2017 in the Northern District of California, the University of California argues that the rescission and actions taken to rescind DACA are without legal force and violate the Fifth Amendment and the APA.
This case was originally filed in August 2016 in the Northern District of NY on behalf of DACA recipient Batalla Vidal. The lawsuit challenged the injunction of expanded DACA and the revocation of Mr. Batalla Vidal’s three-year EAD. On September 5, 2017, Mr. Batalla Vidal and Make the Road New York (MRNY) sought to amend their complaint in light of the DHS memo rescinding DACA. The plaintiff argues that the recent DHS action violates the APA and the Fifth Amendment. The plaintiff seeks to join additional parties and add class allegations for a potential nationwide class action lawsuit that would include DACA eligible people and NGOs like MRNY and its members.
Arguments Challenging the Legality of the DHS Rescission
Fifth Amendment Equal Protection and Due Process Clauses: Several lawsuits cite Trump’s repeated use of anti-Mexican rhetoric to argue that the rescission amounts to discriminatory treatment on the basis of national origin. Plaintiffs also argue that DHS’s refusal to prohibit use of information contained in DACA applications for enforcement also violates the due process clause. DACA applicants have relied on DHS’s previous representations on confidentiality and the protection of information submitted in DACA applications. Using this in formation for enforcement now would be fundamentally unfair.
Administrative Procedure Act: Plaintiffs assert that the rescission memo violates the APA because the administration failed to provide an opportunity for notice and comment on a policy change that affects the substantive rights of DACA beneficiaries, the states in which they reside, academic institutions, and employers. Some plaintiffs also argue that the rescission was “arbitrary and capricious” since the government has not provided valid basis for its decision to terminate DACA.
Regulatory Flexibility Act (RFA): The RFA requires federal agencies to analyze how the rules they promulgate impact on small entities – including small businesses, small nonprofits and government jurisdictions – and publish initial and final versions of those analyses for public comment. Plaintiffs argue that the defendant’s failure to complete and publish this
Equitable Estoppel: Plaintiffs argue that the termination of DACA is fundamentally unfair. DACA applicants came forward and identified themselves to the government, relying on assurances from DHS that DACA was a lawful exercise of discretion and that their personal information would not be used for enforcement.