At a news conference Wednesday that felt more like a political rally, New York Attorney General Eric Schneiderman announced the state’s promised federal lawsuit over President Donald Trump’s decision to retreat from the Deferred Action for Childhood Arrivals executive action initiated by his predecessor.
In the suit, filed in the U.S. District Court for the Eastern District of New York, New York v. Trump, 17-cv-5228, Schneiderman and 15 other states and the District of Columbia argue that Trump’s past rhetoric on immigration and Latinos represents an “animus-driven decision” to end DACA that violates the Constitution’s Fifth Amendment equal protection and due process clause.
The 58-page complaint offers a litany of potential harms DACA beneficiaries will face should the phaseout, scheduled to begin in March 2018, be allowed to happen.
In it, the state argues that New York faces an economic threat from the end of DACA, as 91 percent of grantees—more than 40,000 in New York—are employed across the state, with an estimated cost of $38.6 billion over the next decade. The many students encouraged to pursue higher education in New York will potentially be forced to drop out. More people, forced back into the shadow economy, will be pushed off insurance plans, taxing the state’s health care network. These consequences and more would have a ripple effect throughout the larger community as wage earners, parents and other people connected to and dependent on DACA grantees facing the prospect of being dropped from the program, according to the complaint.
The burden for these issues would fall disproportionately on a Latino population that makes up the vast majority of DACA grantees, Schneiderman argues. Trump’s statement during the campaign and at events since being elected amount to the targeting of that same population, the New York AG argues in the suit, “for discriminatory treatment based on their national origin, without lawful justification.”
Schneiderman also asserts in the suit that the administration’s decision violates the Administrative Procedure Act. Given the “minimal formal guidance” provided to them by the administration, federal agencies “have taken unconstitutional and unlawful action” in violation of the APA, while arguing that agencies haven’t followed the correct review procedure “before engaging in action that impacts substantive rights,” the suit claims.
At the news conference and in the complaint, Schneiderman raised concerns that information provided by DACA beneficiaries could ultimately be used against them by immigration officials in the event the program disappears.
“Immigrants came forward for DACA and gave confidential information with the promise it would not be used to deport them,” he said at the news conference. “Those promises were betrayed yesterday.”
In order to be approved by DACA, grantees had to go through background checks, Schneiderman noted, dispelling the notion that grantees represent an existential criminal threat. “This was done not to make us safer, and not to comply with the Constitution; this was done with a discriminatory intent to expel hundreds of thousands of immigrants that today are making America great again,” he added.
Gov. Andrew Cuomo and Schneiderman, who have had a tepid relationship in the past, announced their intentions to sue the Trump administration Monday (NYLJ, Sept. 5). At the press conference Schneiderman said the suit filed Wednesday was done “with the full support of the governor.”
DACA was put in place by then-President Barack Obama via executive action in 2012. It shields undocumented immigrants who arrived in the United States as children from deportation and grants them work permits.
The Trump administration plans to end the program through an “orderly, lawful wind down,” U.S. Attorney General Jeff Sessions said during a press conference Tuesday morning. Trump urged Congress to replace the program with legislation before the program begins phasing out on March 5 next year. “Congress, get ready to do your job- DACA!” Trump tweeted Tuesday morning.
Later in the day, Trump said he’d revisit the program if Congress fails to enact legislation.
“Congress now has 6 months to legalize DACA (something the Obama administration was unable to do). If they can’t, I will revisit this issue!” Trump tweeted Wednesday evening.
The Trump administration’s plan to end the program has been widely condemned by immigration groups, some political figures on both sides of the aisle and Obama, who took to Facebook to denounce the “cruel” and self-defeating” decision to end the program.
Washington state Attorney General Bob Ferguson on Monday announced in a press release that his office would also sue the Trump administration to “halt this cruel and illegal policy and defend DACA recipients.” California Attorney General Xavier Becerra, who has roughly 220,000 DACA recipients living in the state, said he’s also prepared to sue the Trump administration, as is Massachusetts Attorney General Maura Healey. Washington and Massachusetts joined with New York in the suit filed Wednesday.
Following Sessions’ announcement, lawyers from the National Immigration Law Center filed a letter in an ongoing case in the Eastern District of New York explaining their intent to file an amended complaint over the decision to end DACA. They have also argued that the decision to terminate DACA violated the Administrative Procedure Act because the government did not offer a “reasoned explanation” for rescinding the policy. The letter also claimed that the program was ended because of the president’s animus toward Latinos and therefore violated the equal protection component of the Fifth Amendment’s due process clause.
Legal experts said that they could be a long shot. It’s hard to predict how receptive courts will be to the arguments, The National Law Journal reported yesterday.
At the news conference Wednesday, Schneiderman vowed to use “every tool in my legal and constitutional toolbox” to fight the decision.
“We understand what’s going on in Washington and we know when bullies step up, you have to step to them and step to them quickly,” the AG said.
The crowd of more than three dozen DACA supporters behind Schneiderman at John Jay College of Criminal Justice in Manhattan routinely broke into approving chants of “Si se puede,” the Obama-era rallying cry, as so-called Dreamers, union officials, immigrant organization leaders and local elected officials argued for the protection of the DACA beneficiaries in New York, and more than 800,000 nationwide.