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.

Continue reading “University of California Sues DHS Over DACA Revocation”

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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Trump signed E.O., “Enhancing Public Safety in the Interior of the United States.”

This executive order covers several areas: (1) immigration law enforcement priorities, (2) increasing the number of immigration officers, (3) targeting sanctuary cities, and (4) eliminating privacy of undocumented immigrants.

1. Immigration Law Enforcement Priorities (Sec. 5, and 10(a))

The executive order first strikes down a Nov. 2014 memo which laid the framework for the Priority Enforcement Program (PEP). The memo detailed the DHS enforcement priorities and outlined three priority levels: Priority 1 (threats to national security, border security, and public safety), Priority 2 (misdemeanants and new immigration violators), and Priority 3 (other immigration violations). This memorandum is a “guidance” document under 5. U.S.C. § 553(b) and as such, it did not go through notice and comment rule making to become a regulation. Without those procedures, it is not protected and can be easily undone with an executive order.

At Lawfare, Shannon Togawa Mercer reports that by striking the 2014 memo this executive order has replaced the priority list from to cover the following classes of undocumented immigrants: Continue reading “Trump signed E.O., “Enhancing Public Safety in the Interior of the United States.””