Immigrant rights lawyers opened the first legal front against the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program, known as DACA, hours after it was announced by Attorney General Jeff Sessions on Tuesday.
In a court filing Tuesday afternoon, attorneys asked a federal judge in Brooklyn to allow them to amend an existing lawsuit filed on behalf of a Mexican-born man — who came to the United States when he was seven years old and received work authorization under DACA — to address Tuesday’s policy change.
Lawyers for the plaintiff, Martín Batalla Vidal, said they planned to raise two claims against the administration’s decision to end DACA: First, that officials failed to offer a “reasoned explanation” for the move, in violation of the federal Administrative Procedure Act, and, second, that the decision was unconstitutionally “motivated by anti-Mexican and anti-Latino animus.”
“This administration has no interest in trying to find a compassionate solution,” Marielena Hincapié, the executive director of the National Immigration Law Center, said in a press call Tuesday afternoon. The center is representing Vidal along with Make the Road New York, and the Worker & Immigrant Rights Advocacy Clinic WIRAC at the Yale Law School.
Democratic state attorneys have also indicated that they’ll take legal action to try to stop the administration from ending DACA.
On Tuesday morning, Attorney General Jeff Sessions announced that he and other officials would “wind down” the program, enacted by the Obama administration in 2012, thereby allowing protections against deportation for roughly 800,000 people to end in six months.
Current DACA recipients “generally will not be impacted until after March 5, 2018,” said a follow-up statement from the White House, which says the six-month window would allow Congress to pass legislation.
But on a press call, Hincapié said that arbitrary timeframe is unworkable for plaintiffs like hers. Batalla Vidal originally filed suit in the US District Court for the Eastern District of New York over the revocation of his work authorization after a federal district judge in Texas blocked the Obama administration’s expansion of the DACA program in 2015. (The judge also halted the Obama administration’s proposed DAPA program, a similar deferred action program for undocumented immigrants who were the parents of US citizens or lawful permanent residents).
In Tuesday’s court filing, Batalla Vidal’s lawyers also noted that DACA applicants had provided personal information about themselves and their family members to the US government, and had relied on representations by officials at the time that it would not be used for immigration enforcement.
“Probably one of the greatest fears is about what will happen — whether all the information will remain confidential or not,” she said. “Young people relied on the assurance from federal government, not just from Obama administration but from this administration as well, that they could rest easy.”
At least two states also appear poised to challenge the decision to end DACA in federal court. On Monday, attorneys general from New York and Washington state threatened litigation if the Trump administration canceled the program.
“We have been working closely with legal teams around the country, and we expect to be joined by other states in this action,” Washington Attorney General Bob Ferguson said in a statement on Monday.
Neither state would comment on their legal strategies. On Tuesday afternoon, California Attorney General Xavier Becerra said at a press conference that his office was "ready to sue to defend the DACA program," but did not offer details on what kind of legal action they might pursue or when they would file in court.
But their legal claims and efforts to gain standing to sue the administration could echo arguments the states made when challenging Trump’s travel ban executive order. In those cases, several states contended they were harmed because the administration's plans had ramifications for state schools and international corporations based there.
Like the individual plaintiffs, the states could claim the Trump administration is acting out of animus toward foreigners, violating constitutional rights to due process and equal protection, also echoing arguments they made in the travel ban case alleging religious discrimination.
New York’s Attorney General Eric Schneiderman said in a statement on Monday, "President Trump's decision to end the DACA program would be cruel, gratuitous, and devastating to tens of thousands of New Yorkers—and I will sue to protect them. Dreamers are Americans in every way. They played by the rules. They pay their taxes. And they've earned the right to stay in the only home they have ever known.”
“More than 40,000 New Yorkers are protected under DACA,” he added. “They pay more than $140 million in state and local taxes. They are vital members of our community.”
Meanwhile, DREAMers live with the fear that it'll be really easy for the government to find them.
When he applied for a program that would protect him from deportation and let him work legally, Manny gave the federal government all his personal information: his fingerprints, his address, and the names of family members.
Now, with the Trump administration’s announcement that it will shut down the Deferred Action for Childhood Arrivals (DACA) program in six months, Manny is worried about how the information he divulged so trustingly will be used against him.
“They said they’re not going to do that but the administration doesn’t always follow through with a lot of what it says,” Manny told BuzzFeed News. “I don’t want to live with that sense of fear, thinking my mom is in danger.”
Not surprisingly, Manny declined to allow his full name to be used, for fear of retribution.
The Department of Homeland Security says generally the information that nearly 800,000 people provided the government when they applied for DACA status won't be provided to law enforcement agencies unless the person who applied poses a risk to national security, public safety, or meets certain criteria.
But the agency also added that the policy may be modified, superseded, or rescinded at any time.
In a statement to BuzzFeed News, DHS said it would not proactively provide Immigration and Customs Enforcement, which detains undocumented immigrants, with information on dreamers. ICE, however, would have to be able to seek any information DHS entities had collected to carry out its mission to protect public safety and national security.
“This is not dissimilar to what happens with law enforcement agencies that seek information on individuals from various records in order to conduct law enforcement activities,” DHS said.
That worries Maria Praeli, a DACA recipient and a policy associate at FWD.us, an advocacy organization. She wonders what will happen if Congress hasn't acted when the program ends in six months and former DACA recipients revert to undocumented status.
“The enforcement priorities clearly state that everyone is a priority for removal. Not having the program in place and not having a bipartisan Dream Act passed by Congress, does that mean that we are the easiest target for them?" Praeli said on a call with reporters. “It's scary. They know where I live, they know where my family lives. I feel like it puts us in danger."
Sylvia, 24, who came to the US in 2002 from Mexico with her family, lives in Riverside, California. She also declined to use her full name.
Having DACA made it easier, she said, to go to college and get a job. She was even able to purchase the family’s first car. In order to get these benefits, she had to provide reams of documents proving she'd been living in the US since 2007 — bank statements, school records, every address she’d called home.
Sylvia, who is a member of an activist group known as the Inland Empire-Immigrant Youth Collective, wonders what might happen if people with DACA are arrested while protesting for immigrant rights. Could ICE classify them as threats to public safety and use their actions as reason to deport them?
“I’m worried because I’ve read news coverage of other undocumented folks who are organizing and speaking out being detained,” Sylvia said. “What repercussions do we now face for speaking out? Can we be apprehended for protesting and being outspoken?”
DHS's assurances are of little comfort, though Sylvia said that won't stop her from advocating for undocumented immigrants.
“It doesn’t make me go back into the shadows,” Sylvia said. “I want to continue to be a part of this movement and push for something inclusive, but it does make me more cautious.”
Ignacia Rodriguez, immigration policy advocate at the National Immigration Law Center, told BuzzFeed News that her group remains on "high alert" for any sign that DHS is sharing the information that DACA recipients volunteered when they applied. She promises legal trouble if DHS is caught providing information that should be kept confidential.
“The Department of Homeland Security clarified it would only share the information gathered through the application process with ICE under very limited circumstances,” Rodriguez said. “So by doing so, they would be breaching the policy people relied on when they submitted their application.”
John Sandweg, ICE's former acting director and a former DHS general counsel, previously has told BuzzFeed News that despite Obama administration promises not to use the information for deportation purposes, there's nothing stopping Trump from doing so.
And Sally Kinoshita, deputy director of the Immigrant Legal Resource Center, said DHS has left itself plenty of wiggle room to provide information, in particular in cases considered national security risks, threats to public safety, or gang members.
“The concern here is that yes, that information could be used,” Kinoshita told BuzzFeed News. “There are some assurances, but priorities change, especially under an anti-immigrant presidential administration.”
Kinoshita said thousands of undocumented immigrants applied for the program when Obama created it in 2012 under an executive order because they received assurances that the information wouldn’t be used against them. Those assurances have been less enthusiastic from the Trump administration.
“I’m worried because of the kind of direction ICE agents are getting from the commander-in-chief,” Kinoshita said. "They feel like the muzzle has been taken off."
Still, Manny said DREAMers shouldn’t let fear overwhelm them.
“We should be lighting a torch of hope in this darkness we’re being surrounded by,” Manny said. “In this six months, we are going to decide if we keep DACA or fight for something like the DREAM Act. We won't stand down, take a step backwards, and we’ll keep marching.”
3 WAYS TO SHOW YOUR SUPPORT
- Log in to post comments