Secretary of Homeland Security Janet Napolitano answers questions before the Senate Judiciary Committee. May 6, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL. ()
University of California president Janet Napolitano took to the court Friday to protect a policy she helped create, which temporarily shields children of undocumented immigrants from deportation.
Lawyers for Covington & Burling, working pro bono, filed a lawsuit in the U.S. District Court for the Northern District of California on behalf of Napolitano and the regents of the University of California against the Department of Homeland Security. The lawsuit claims that by rescinding the Deferred Action for Childhood Arrivals policy, known as DACA, DHS and acting Secretary Elaine Duke violated the Administrative Procedures Act and the due process clause of the Fifth Amendment. Napolitano, as DHS secretary in 2012, issued the memo that created DACA.
“At the University of California, we see the exceptional contributions that Dreamers make every day,” Napolitano said on a call with reporters Friday. “They really represent the spirit of the American dream and, by its action, the administration has dashed those dreams. We hope by this lawsuit to restore those dreams and to restore DACA to its rightful place.”
Napolitano said the UC student body includes thousands of undocumented immigrants, a “proportion of which” are DACA recipients. There are also members of the staff who are DACA recipients.
Attorney General Jeff Sessions announced the end of the DACA program Tuesday, and a group of Democratic state attorneys general filed a lawsuit in New York federal court over the decision the next day. California Attorney General Xavier Becerra did not join the group. Becerra said his office is planning its own lawsuit that will be filed California.
The Covington group representing UC includes San Francisco-based partner Jeffrey Davidson and Alan Bersin, a policy consultant and former DHS official. Also on the team is partner and former Justice Department Criminal Division Chief Lanny Breuer, senior counsel Mark Lynch, partner Alexander Berengaut and associates Megan Crowley, Ashley Nyquist and Ivano Ventresca, all based in Washington, D.C.
In the lawsuit, UC claims the rescission of the policy violates the school’s Fifth Amendment right to due process. The university said it will suffer by losing the “value of the time and money it invested” in students who are DACA recipients when and if they are deported, as well as “their contributions” to the university community.
“The rescission and actions taken by defendants to rescind DACA unlawfully deprive the university and its students of these and other constitutionally-protected interests without due process of law,” the lawsuit said. “Such deprivation occurred with no notice or opportunity to be heard.”
The complaint alleges DHS violated the Administrative Procedure Act in two ways. The first is by rescinding the policy without a “reasonable explanation.” Sessions said in his announcement that DHS chose to end the policy because it was unconstitutional and an abuse of presidential authority. UC’s complaint alleges the opposite, so the decision to end it is “arbitrary and capricious.”
The second violation, the school said, is DHS did not go through the typical “notice and comment” process federal agencies use, which allows the public to see and comment on rules and regulations before they’re issued.
When DACA was created in 2012, DHS did not go through a notice and comment period. Napolitano said the APA did not apply then, because DACA was created as “an individual, case-by-case determination as an exercise of prosecutorial discretion.” Individuals apply to DHS to receive the designation, which they only get if they fit a very particular set of criteria.
But removing the policy is a different story, Napolitano said, because it “removes DACA for a whole category of individuals.” Therefore, the APA does apply. She added there’s been a “substantial reliance” on the policy by individuals, so removing the policy without input also implicates the APA.