University of California Sues DHS Over DACA Revocation

The Regents of the University of California and Janet Napolitano v. Department of Homeland Security, Complaint for Declaratory and Injunctive Relief


On September 8, 2017, the University of California system and its President, Janet Napolitanofiled a complaint in the Northern District of California to challenge the DHS revocation of DACA, (referred to as the “Rescission”). If the name Janet Napolitano sounds familiar from previous DACA coverage, it is because she was the Secretary of DHS who authorized the original DACA memo. Now, as President of the University of California, Napolitano is asserting standing to sue in her official capacity.

The main question here is whether the University has standing to sue over the DHS memo. The key elements of standing are that the plaintiff must have a direct injury, the injury is redressable in court, and the defendant’s action caused the injury.

The complaint asserts two substantially similar claims as New York v. Trump, but provides a unique due process argument – claiming that the University has a protected property interest in the resources that it spent on DACA recipients that DHS stripped away with the DACA revocation. This due process argument will likely be the heart of the University’s standing. This is the injury that the University suffered that DHS caused.

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States Sue Trump, DHS Over DACA Revocation

States of NY, et al v. Trump, Complaint for Declaratory and Injunctive Relief

On September 6, 2017, the attorneys general from fifteen states and the District of Columbia filed a complaint in the Eastern District of New York to challenge DHS’s revocation of the DACA program, referred to as the “DHS Memorandum.” Plaintiffs seek for the court to declare the DHS memo as unlawful; enjoin Defendants from rescinding the DACA program; enjoin Defendants from using information obtained in DACA applications for immigration enforcement actions against applicants, members of the applicant’s family, or actions against the applicant’s employer.

Procedural Posture:

This is an initial complaint filed in the Eastern District of New York seeking declaratory and injunctive relief. The States of New York, Massachusetts, Washington, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia have sued Donald Trump in his official capacity; the Department of Homeland Security; Elaine C. Duke in her official capacity; U.S. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; and the United States of America.

Claims Presented:

Fifth Amendment – Equal Protection Clause

(1) Plaintiffs seek relief under the Equal Protection Clause of the Fifth Amendment.

Plaintiffs allege that the DACA rescission (referred to as “DHS Memorandum”) was motivated by a discriminatory intent, or desire, to harm Mexicans. Because Mexicans are the largest group of DACA recipients, the rescission has a discriminatory impact against this group.

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DHS Revokes DACA

Effective immediately, the Department of Homeland Security will phase out the Deferred Action for Childhood Arrivals program.

On Monday, September 4, 2017, Attorney General Jeff Sessions issued a letter to the Department of Homeland Security to revoke the Deferred Action for Childhood Arrivals program (DACA). The following day, Acting Secretary of Homeland Security Elaine C. Duke issued a memorandum that (1) rescinds the basis for DACA – the June 2012 memo, and (2) sets forward a plan for phasing out DACA.

The DACA program was formally initiated on June 15, 2012 by Janet Napolitano, then-Secretary of Homeland Security. The basis for this program is Napolitano’s policy memorandum, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” In this memo, she directs the Department of Homeland Security to use its discretion when targeting undocumented immigrants to find childhood arrivals as a “low priority.”

What is the DACA phase out plan?

In her memo, Acting Secretary Duke outlined the particulars of how this revocation of DACA will effect current and pending recipients of the program:

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Trump Signed E.O., “Restoring State, Tribal, and Local Law Enforcement’s Access to Life-Saving Equipment and Resources”

This brief E.O. revokes the Obama-era E.O. that restricted the use of surplus military equipment by local law enforcement agencies.

Section 1 of this executive order revokes Executive Order 13688 issued on January 16, 2015 by then-President Obama. This order, entitled “Federal Support for Law Enforcement Equipment Acquisition,” created a working group to identify how surplus military equipment flowed to local law enforcement agencies, and it created a list of equipment that should be prohibited or restricted, including armored tanks, certain caliber ammunition, and bayonets.

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ACLU Sues Trump Over Transgender Military Ban

Stone v. Trump, Complaint for Declaratory and Injunctive Relief

In response to the August 25 presidential memorandum, the ACLU filed a petition in the District of Maryland on behalf of six openly serving transgender members of the military.

This lawsuit reiterates the basic claims of the recently filed GLAD and NCLR suit, Doe v. Trump, but it parses out the three critical elements of the August 25th memo: (1) ban on existing service members (Sec. 1(b)); (2) ban on new enlistments (Sec. 2(a)); and (3) ban on medically necessary care (Sec. 2(b)).

Further, Stone v. Trump argues that discrimination against transgender individuals deserves heightened scrutiny. The Supreme Court has not yet determined whether transgender individuals, as a class, deserve intermediate or strict scrutiny when reviewing government discrimination against transgender people.

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Trump pardons Former Sheriff Joe Arpaio

On August 25, 2017, President Trump granted a Presidential pardon to Joe Arpaio, the former Sheriff of Maricopa County, Arizona. While the statement does not address the scope of the Presidential pardon, the context of Arpaio’s recent offense and criminal conviction is critical to inform the purpose and effect of this pardon.

Ortega Melendres v. Arpaio

In 2007, the ACLU filed a class action suit against Maricopa County Sheriff’s Office (MCSO) and Sheriff Joe Arpaio in his official capacity. The suit alleged that MSCO engaged in racial profiling and arrested individuals without probable cause as to their immigration status. The ACLU stated that “the policies and practices of Arpaio and the county are discriminatory and unlawfully violate the Fourth and Fourteenth Amendments to the U.S. Constitution, Title VI of the Civil Rights Act of 1964 and the Arizona Constitution.” Read the petition.

Essentially, an warrantless arrest made without probable cause violates the Fourth Amendment protections against unreasonable seizure. An officer has probable cause when the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant an objective belief that the suspect has committed or is committing a crime for which arrest is authorized law. A suspicion based on the racial appearance of an individual is not a reasonably trustworthy fact that the individual is unlawfully in the country or guilty of any other offense. MCSO routinely committed stops and arrests of individuals only based on such racial profiling, which is less that the probable cause standard required by the Constitution.

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Trump writes Pres. memo, “Military Service by Transgender Individuals”

This presidential memo reinstates the long-standing ban on transgender military service.

On August 25, President Trump issued a memorandum directing the Secretary of Defense and Secretary of Homeland Security to reinstate the prohibition on openly transgender military service members.

Section 1(a) of the memorandum outlines the history of the prior prohibition on military service by transgender individuals. Prior to June 2016, transgender persons were prohibited from joining the military and, if already serving, discharge based on this status was appropriate. At the Palm Center, a group of current and former military professors describe the pre-2016 policy as “an outright ban that was premised on the general presumption that transgender Americans are unfit to serve in the armed forces.”

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