Sixteen jurisdictions sue Trump Administration over DACA rescission

Fifteen states and the District of Columbia lost no time going after the Trump administration after its September 5, 2017 DACA rescission, which our previous blog details. On September 6, 2017, they filed their lawsuit against President Trump, the Department of Homeland Security (DHS), the U.S. Immigration and Customs Enforcement, the U.S. Citizens and Immigration Services, and Elaine Duke, the acting secretary of the DHS, and the United States of America itself.

In his press release announcing the case, New York’s attorney general, Eric Schneiderman, made the following remarks:

“Immigration is the lifeblood of New York State. The Trump administration’s decision to end DACA is cruel, inhumane, and devastating to the 42,000 New Yorkers who have been able to come out of the shadows and live a full life as a result of the program. These DREAMers play by the rules. They work hard and pay taxes. America is the only home they have ever known – and they deserve to stay here and keep contributing to our state and our nation. That’s why we’re taking the Trump administration to court…”

Attorney General Schneiderman accused the president of threatening “huge economic harm,” but also of being motivated by a “personal anti-Mexican bias.”

The following 16 states are plaintiffs in the suit: New York, Massachusetts, Washington, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia.

California, another state that has taken a strong stand against President Trump’s immigration stance, will file its own suit. That state’s attorney general, Xavier Becerra, issued his own statement revealing his plans, in which he noted that California contains one-quarter of DACA beneficiaries, which is more than 220,000 young people. Additionally, “[n]early 80 percent of voters want to protect the legal status of Dreamers. Ending the program is devastating not just for recipients, but for our economy. California businesses would lose more than a billion dollars in turnover costs.”

The states’ complaint

The complaint contains five claims:

  1. Fifth Amendment – Equal Protection
  2. Fifth Amendment – Due Process – Information Use
  3. Administrative Procedure Act – Substantively Arbitrary and Capricious, Abuse of Discretion, Contrary to Constitution or Statute
  4. Administrative Procedure Act – Procedurally Arbitrary and Capricious, Notice and Comment
  5. Regulatory Flexibility Act – Failure to Issue Regulatory Flexibility Analyses

Here is a brief explanation of each cause of action.

  1. Fifth Amendment – Equal Protection

This amendment of the United States Constitution prohibits the federal government from, among other things, treating similarly situated people differently, by way of the clause prohibiting the deprivation of life, liberty or property without due process of law. (It is the Fourteenth Amendment that makes it unlawful for states to do this, by way of the equal protection clause.)

In the complaint, the plaintiffs allege that the rescission Memorandum, “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.”

The complaint contends that “[m]ore than 78 percent of DACA grantees are of Mexican origin.” Among the litany of President Trump’s actions and statements that the complaint quotes is this well-known one: ““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.”

The complaint also cites a speech in May 2016, when “then-candidate Trump referred to anti-Trump protestors who carried the Mexican flag on Twitter as ‘criminals’ and ‘thugs.’”

Numerous other incidents that the plaintiffs point to include the president’s pardon of former Maricopa County Sheriff Joe Arpaio, whose “office detained huge numbers of individuals solely because they looked Latino, without any reasonable suspicion of illegal conduct.”

  1. Fifth Amendment – Due Process – Information Use

This count goes to the heart of what strikes so many Dreamers with fear: the government’s use of information that DACA applicants gave to the government on the promise that they would be protected, not prosecuted.

The complaint asserts that the “Due Process Clause of the Fifth Amendment requires that immigration enforcement actions taken by the federal government be fundamentally fair.” It goes on to allege that by refusing “to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement,” any governmental actions relying on the data, “including identifying, apprehending, detaining, or deporting non-citizens,” are “fundamentally unfair.”

  1. Administrative Procedure Act – Substantively Arbitrary and Capricious, Abuse of Discretion, Contrary to Constitution or Statute

According to the complaint, the Administrative Procedure Act (APA) is purposed in preventing federal agencies from acting in a way that is “arbitrary, unconstitutional, and contrary to statute.” The crux of this claim is that the Memorandum, enacted with “minimal formal guidance,” constitutes an APA violation.

  1. Administrative Procedure Act – Procedurally Arbitrary and Capricious, Notice and Comment

This count stresses that the APA “requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights.”

This formal rule-making procedure includes, among other things, publishing a general notice of the proposed rule in the Federal Register that contains 1) a statement of the time, place, and nature of public rule making proceedings; 2) reference to the legal authority under which the rule is proposed; and 3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.

After such notice, “interested persons” must have the chance to comment on the proposal, and have “the right to petition for the issuance, amendment, or repeal of a rule.”

The complaint alleges that the DHS is subject to the APA rules, but when it “changed the substantive criteria” by which DACA guarantees that Dreamers can “work, live, attend school, obtain credit, and travel in the United States,” it unlawfully observed none of them.

  1. Regulatory Flexibility Act – Failure to Issue Regulatory Flexibility Analyses

Under the Regulatory Flexibility Act, any agency subject to the APA rules described above, in count 4, must “prepare and make available for public comment an initial regulatory flexibility analysis” that describes the impact of the proposed rule on “small entities.”

A “small entity” is a small business, a small nonprofit, and a small governmental jurisdiction.

The analysis the Regulatory Flexibility Act requires must, like the APA notice, be published in the Federal Register.

There are five pieces of information that the initial analysis must contain:

(1) A description of the reasons why action by the agency is being considered;

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule;

(3) A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

(4) A description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and

(5) An identification, to the extent practicable, of all relevant Federal rules, which may duplicate, overlap or conflict with the proposed rule.

(6) The address the place you gonna live and got your documentation during finishing of immigration process. The address you can register at

The agency must also conduct and post a final version of the analysis that follows upon the need for the proposed rules, and the public comments, among other things.

This claim alleges that the defendants failed to issue “the required analyses of DHS’s new rules” in violation of the Regulatory Flexibility Act.

What the plaintiffs want from the court

Ultimately, the complaint asks the federal district court in New York to declare that the rescission Memorandum is unauthorized by law, and contrary to the U.S. Constitution. It also asks the court to stop the government from rescinding the DACA program.

Beyond this relief, the plaintiffs ask the court to stop the defendants from using any information received through the DACA application or renewal process “to identify, apprehend, detain, or deport any DACA applicant or member of any DACA applicant’s family, or take any action against a DACA applicant’s current or former employer.”

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