Thousands of protesters spill onto 7th Street in San Francisco after President Donald Trump announced ending the Obama-era Deferred Action for Childhood Arrivals program. (Jason Doiy / The Recorder)
The web of litigation surrounding President Donald Trump’s decision to end a program protecting certain children of undocumented immigrants from deportation is swelling rapidly, with two new lawsuits filed Monday.
Legal legends are behind the two latest suits. One, in a Washington, D.C., federal court, was brought by the NAACP with the help of plaintiffs’ giant Joseph Sellers of Cohen Milstein Sellers & Toll. Another, in the federal district court for northern California, was brought on behalf of immigrant children themselves. They are represented by Harvard professor Lawrence Tribe and Gibson, Dunn & Crutcher’s Ted Boutrous, as well as several other prominent scholars and lawyers.
In these and other lawsuits related to the Deferred Action for Childhood Arrivals program, which have been filed on a rolling basis since Attorney General Jeff Sessions announced the rescission of the program Sept. 5, the legal theories are quite similar. Most feature a mix of constitutional claims and charges of violations of administrative law, though the plaintiffs and their standing claims may vary widely.
“The fact that there are similar claims in these cases … is a reflection perhaps that great minds think alike,” Sellers said. “[The DACA lawsuits] all seem to focus on the same conduct and I think reflect genuine and strong concern from different segments of our society.”
In an emailed statement, DOJ spokesman Devin O’Malley said it was the Obama administration’s “arbitrary circumvention of Congress that got us to this point.”
“The Department of Justice looks forward to defending this administration’s position and restoring respect for the rule of law,” O’Malley said.
Here’s an overview of each known lawsuit over the DACA rescission, including the two filed Monday:
Who: The NAACP filed this lawsuit noting that 95 percent of DACA recipients are people of color. The group filed the lawsuit against Trump, Sessions, the Department of Homeland Security and its acting secretary, Elaine Duke, U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement.
The organization is represented by Sellers as well as Douglas McNamara and Julia Horwitz, also of Cohen Milstein. NAACP in-house lawyers Bradford Berry and Janette Louard are also on the case. Lawyers for the government have not been named yet.
When and where: Filed Sept. 18 in the U.S. District Court for the District of Columbia.
What: The lawsuit claims the decision to rescind DACA violates the Fifth Amendment because registrants must provide immigration authorities and DOJ with personal information about their immigration status when they apply, with the promise they would not be deported. By now allowing the use of this information in deportation proceedings, the lawsuit claims the government is violating the due process clause. The complaint also requests a declaratory judgment from the court barring immigration officials from using that information in deportation proceedings.
The lawsuit also claims the decision violated the Administrative Procedure Act, which requires the government to provide rational justification for major actions and conduct a “notice and comment” period to allow the public to weigh in. The lawsuit claims DHS’ reasoning that DACA was unconstitutional to begin with is “arbitrary and capricious” under the APA. There’s also a claim under the Regulatory Flexibility Act, which contends the government must conduct an analysis, before the decision, about how it would affect entities such as small businesses.
Who: A group of six DACA recipients filed this lawsuit, one of whom, Dulce Garcia, is a lawyer. Another, Viridiana Chabolla Mendoza, is a law student. The defendants include Trump, DHS and Duke.
The plaintiffs’ lawyers include a team from Gibson Dunn led by Boutrous, as well as legal scholars Tribe, Leah Litman of University of California, Irvine School of Law, and Erwin Chemerinsky of University of California, Berkeley School of Law. Also on the case are Louis Cortes Romero of Barrera Legal Group and Judy London and Mark Rosenbaum of Public Counsel. Lawyers for the government have not yet been listed.
Where and when: Filed Monday in the U.S. District Court for the Northern District of California.
What: The lawsuit makes seven claims, most of which are listed in one of, if not multiple, complaints in other lawsuits. The first two are Fifth Amendment claims, one being that the government pulled a “bait and switch” on DACA recipients in violation of the due process clause by allowing the use of their information in deportation efforts. The other is Trump was motivated by anti-Mexican animus in violation of the clause’s equal protection component.
There are three claims under the APA. Those include arguments that the decision was illegally arbitrary and capricious, is a final agency action and therefore should have gone through a notice-and-comment period, and is de facto void because it’s unconstitutional.
There’s also a similar claim to the NAACP’s lawsuit under the Regulatory Flexibility Act. The last claim is under the legal theory of estoppel, which says the government cannot entice DACA recipients to provide information when they apply to receive DACA and then use that information against them in deportation proceedings.
Who: This case is brought by the city of San Jose against the United States, Trump and Duke.
The lawyers for the city are Cotchett, Pitre & McCarthy’s Brian Danitz, Nancy Fineman and Tamarah Prevost, with Nora Frimann and J. Richard Doyle from the City Attorney’s Office. No lawyers are listed yet for the government.
Where and when: Filed Sept. 14 in the U.S. District Court for the Northern District of California.
What: The city brings just two claims, slightly less than others so far. One is under the Fifth Amendment’s equal protection clause and the other is under the APA for failure to engage in the notice-and-comment procedure.
Who: California, Minnesota, Maryland and Maine filed this challenge against DHS, Duke and the United States.
Lawyers for the plaintiff states include a mix from each state’s attorney general’s office, though California Attorney General Xavier Becerra spearheaded the lawsuit. Brad Rosenberg of DOJ’s Civil Division represents the defendants.
Where and when: Filed Sept. 11 in the U.S. District Court for the Northern District of California.
What: This lawsuit also brings the “bait and switch” argument under the Fifth Amendment’s Due Process Clause as well as an equal protection claim. It includes two APA claims, saying the decision was arbitrary and capricious and needed a notice-and-comment period. This lawsuit also features a similar estoppel claim as others.
Who: Not to be confused with the state of California, the public higher education system has its own challenge, though it’s possible the two will be merged. This suit is brought by the Regents of the University of California and UC President Janet Napolitano. It’s worth noting that as DHS secretary in 2012, Napolitano signed the memo implementing DACA. Defendants are DHS and Duke.
UC is represented by a large team from Covington & Burling that includes partners Lanny Breuer and Jeffrey Davidson among others, as well as in-house counsel. For the government, it’s Rosenberg and Stephen Pezzi, also of DOJ’s Civil Division.
Where and when: Filed Sept. 8 in the U.S. District Court for the Northern District of California.
What: The first two claims in this challenge are under the APA for an arbitrary and capricious decision and lack of notice and comment period. There is also a claim under the Fifth Amendment’s due process clause that says the school will unfairly suffer if its students and staff who receive DACA are deported.
Who: Brought the day after the DACA announcement, this lawsuit is from a larger group of state attorneys general than California’s lawsuit. Plaintiffs include New York, Massachusetts, Washington, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Connecticut and the District of Columbia. The defendants are Trump, DHS, Duke, USCIS and ICE.
The states are led by New York Attorney General Eric Schneiderman, and the lawyers come from various state attorney general offices. Rosenberg again represents the government, along with Joseph Marutollo from the U.S. Attorney’s Office.
When and where: Filed Sept. 6 in the U.S. District Court for the Eastern District of New York.
What: This suit also brings an equal protection claim under the Fifth Amendment. But, unlike the California lawsuit, it claims the DACA decision was motivated by animus toward Mexicans. It also brings a due process claim about the government’s use of information from DACA recipients applications for benefits. The same two APA claims are in this suit as well: that the decision was arbitrary and capricious and needed notice and comment. It also has the Regulatory Flexibility Act claim that the government needed to analyze the policy’s effects on small entities before reaching a final decision.
Who: The plaintiff originally filed the lawsuit last year challenging a Texas district court’s injunction preventing a different program, the Deferred Action for Parents of Americans and Lawful Permanent Residents (known as DAPA) from going into effect. But Martin Batalla Vidal, a DACA recipient, plans to amend his complaint to focus on the DACA announcement, according to recent court filings. Current defendants include USCIS officials, though the amended complaint will likely list more.
Batalla Vidal’s lawyers include Melissa Keaney, Jessica Hanson, Justin Cox and Karen Tumlin of the National Immigration Law Center, a team from the Jerome N. Frank Legal Services Organization at Yale Law School, and Amy Taylor, Deborah Axt and Clement Lee from Make the Road New York. Rosenberg and Marutollo are also on this case for the government, as is the Civil Division’s Brett Shumate, Adam Kirschner, Daniel Halainen and Scott Dunn of the U.S. Attorney’s Office.
Where and when: Originally filed Aug. 25, 2016, in the U.S. District Court for the Eastern District of New York. A letter was filed Sept. 5 expressing an intent to amend the complaint.
What: According to the plaintiff’s lawyers’ letter, they’ll likely bring similar claims to other lawsuits under the Fifth Amendment and APA.