New York Attorney General Leads Lawsuit Opposing Trump’s DACA Repeal

Lev Craig

On September 6, 2017, a coalition of 16 states filed suit against the federal government in response to the Trump administration’s pronouncement that it would revoke the Deferred Action for Childhood Arrivals (DACA) program established by President Obama. The lawsuit, led by New York State Attorney General Eric Schneiderman and filed in the U.S. District Court for the Eastern District of New York, alleges that rescinding DACA unlawfully discriminates against individuals of Mexican national origin, violates the due process rights of DACA grantees, and negatively impacts states’ residents and economies.

DACA was established by the Obama administration in June 2012 via an executive branch memorandum issued by Janet Napolitano, the then–Secretary of Homeland Security. The policy allowed undocumented immigrants who had arrived in the U.S. before the age of 16 and met certain eligibility conditions to apply to U.S. Citizenship and Immigration Services (USCIS) for work permits and protection from deportation for two years. Immigrants requesting DACA were required to have lived continuously in the U.S. since 2010 and to be currently in school, have a high school diploma or GED, or be an honorably discharged U.S. military veteran. In addition, individuals who had been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, or who USCIS determined would “otherwise pose a threat to national security or public safety,” could not apply for DACA.

Today, there are around 800,000 DACA enrollees—nearly 42,000 of whom live in the state of New York, where they pay approximately $140 million in annual state and local taxes. The Center for American Progress found that 97% of DACA participants are employed or enrolled in school, and studies have shown that instituting DACA has led to improved wages and a boost in workforce participation, reduced the number of undocumented households living below the poverty line, and improved the mental health of undocumented immigrants and their children.

But on September 4, 2017, U.S. Attorney General Jeff Sessions sent a letter to the U.S. Department of Homeland Security (DHS), calling DACA “an open-ended circumvention of immigration laws” and “an unconstitutional exercise of authority by the Executive Branch” and recommending that DHS rescind DACA. The following day, the Trump administration announced that DHS was revoking DACA and beginning a phase-out plan to end the program. This decision put the immigration status of nearly one million people in jeopardy.

Trump’s announcement provoked widespread backlash, with politicians and immigration activists decrying the administration’s actions as thinly-veiled xenophobia and pointing out that rescinding DACA would have devastating effects on the lives of the program’s current enrollees, as well as on state and national economies. In a press statement announcing the filing of the lawsuit, Attorney General Schneiderman called rescinding DACA “cruel, inhumane, and devastating” and “driven by President Trump’s personal anti-Mexican bias,” adding that the Trump administration’s decision “would cause huge economic harm to New York.”

The lawsuit alleges that Trump’s decision to invalidate DACA violates the U.S. Constitution’s equal protection clause, as it disproportionately impacts individuals of Mexican national origin; though Mexican-Americans compose just over 11% of the U.S. population according to the most recent U.S. census data, over 78% of DACA enrollees are Mexican. Due to the sensitive immigration status information DACA enrollees provided in their applications and the fact that the federal government has not made “any assurances that immigration enforcement agents will not use such information to find and remove those who applied for DACA,” revoking DACA leaves U.S. residents of Mexican national origin at disproportionate risk for deportation. This, the complaint alleges, targets “individuals for discriminatory treatment based on their national origin, without lawful justification”—particularly when viewed in conjunction with President Trump’s “numerous statements about his intentions towards Mexicans.”

While the outcome of this lawsuit and the future of DACA remain to be seen, New Yorkers are protected against discrimination in the workplace by federal, state, and city employment laws. If your employer has discriminated against you based on your race, national origin, immigration status, or any other protected characteristic, contact The Harman Firm, LLP.