Washington Attorney General Bob Ferguson said rescinding DACA is discriminatory and violates the due-process rights of young immigrants brought here as children.
Charging President Donald Trump with violating promises and discriminating against young Mexican immigrants, Washington Attorney General Bob Ferguson announced Wednesday that 15 states and the District of Columbia are suing the Trump administration over its decision to end the Deferred Action for Childhood Arrivals (DACA) program.
“It’s outrageous. It is. It’s outrageous. I’m not going to put up with it,” Ferguson said at a morning news conference in Seattle, where he was joined by Gov. Jay Inslee and a half-dozen DACA recipients. The attorney general called this a “dark time for our country.”
Washington, New York and Massachusetts are taking the lead on the lawsuit, Ferguson said. The arguments in the 58-page complaint on behalf of Dreamers, brought to the U.S. illegally as children, are complex, he allowed.
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The lawsuit claims Trump violated constitutional due process and equal-protection guarantees, as well as federal laws requiring certain procedures be followed before a complex program such as DACA is dismantled.
Ferguson said he had one question. “If the overwhelming majority of Dreamers were Caucasian, does anybody really think this president would take the action he took yesterday?”
Trump’s actions show animus toward people with Mexican roots, the lawsuit claims. As Ferguson did previously when challenging Trump’s travel ban, he pointed to statements the president made during his campaign, as well as in office — calling Mexicans, for example, criminals and “bad hombres.”
Nearly 80 percent of the country’s some 800,000 Dreamers are of Mexican descent, Ferguson said. As of March, the government had approved close to 18,000 DACA applications from Washington residents.
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“It has nothing to do with people’s race or ethnicity,” countered Ira Mehlman, Seattle-based spokesman for the Federation for American Immigration Reform. “It has to do with their legal status.” The ending of DACA discriminates only against people who are here illegally, he said.
A White House spokeswoman, asked for comment, referred to remarks made by U.S. Attorney General Jeff Sessions Tuesday in announcing the end of DACA.
“As the attorney general said yesterday: ‘No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law,’” said the spokeswoman in an email.
While the plaintiffs in the lawsuit “may believe that an arbitrary circumvention of Congress is lawful, the Department of Justice looks forward to defending this administration’s position.”
Sessions announced an “orderly, lawful wind down” over the next six months of the program, established in 2012 by President Barack Obama, which gives renewable two-year work permits to qualifying immigrants who entered the U.S. illegally.
The Department of Homeland Security will accept no new permit applications, but those with work permits expiring before March 5 can apply to renew them.
Opponents of the program call DACA an unconstitutional abuse of executive power.
But proponents of the program said the move by Trump was cruel.
The states involved in the lawsuit, filed in New York Wednesday, are Washington, New York, Massachusetts, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia. Washington, D.C., also joined the suit.
All have attorneys general who are Democrats.
California, one of the most solid Democratic states, was noticeably absent. California Attorney General Xavier Becerra plans to file a separate lawsuit because a quarter of DACA recipients are California residents, his spokeswoman said.
Due process issues?
The multistate lawsuit claims that ending DACA causes immediate harm to states’ businesses, colleges and universities, and economies.
Its due-process claims rest in part on the government’s earlier promises not to use personal information submitted by DACA applicants against them.
The federal government has said that it does not intend to actively target Dreamers for deportation once the six-month period is over. But Ferguson said the Trump administration has given no guarantees.
States don’t need to wait for the government to actually detain people, said Colleen Melody, chief of Ferguson’s civil-rights unit, speaking at the news conference.
She said the federal government, on its website explaining the DACA application process, has already taken down responses to frequently asked questions that say applicants’ information won’t be used for other purposes.
“You cannot trust Donald Trump on anything,” Inslee added.
The lawsuit also claims Trump’s end of DACA was arbitrary and capricious, and violated two federal laws. One, called the Administrative Procedure Act, requires a process to end a program like DACA, including a period of fact-finding and public comment, according to Ferguson and Melody.
“It may sound technical, but believe me it is not technical,” Ferguson said.
The U.S. Fifth Circuit Court of Appeals cited the act when ruling against another program Obama created, the Deferred Action for Parents of Americans (DAPA), which would help the parents of DACA recipients, Ferguson said.
In that case, Obama was said to have ignored the proper process in creating DAPA. Asked whether it was possible that judges might say that DACA was invalid for that same reason, Melody said those two were different programs.
For one thing, she said, DAPA was never implemented and DACA has been up and running for five years.
She and Ferguson also stressed that, while the Trump administration has said it is ending DACA to protect the rule of law, no court has ruled DACA illegal.
The Seattle area’s corporate giants also lent their support. The chief executives of Amazon.com, Microsoft and Starbucks last week signed their names to an open letter urging Trump to keep DACA in place.
Wednesday, each company filed declarations supporting the lawsuit, which outlined the harm they and their employees would suffer if the program ended.
Ayesha Blackwell-Hawkins, who oversees Amazon’s immigration strategy, said the company was aware of nine DACA recipients employed by the e-commerce giant. “We believe, like most large U.S. companies, there are many more,” she said.
Microsoft, which said this week it was aware of 39 Dreamers within its ranks, pledged to defend those employees.
“If Dreamers who are our employees are in court, we will be by their side,” said Brad Smith, Microsoft’s president and chief legal officer, in a blog post.
A tough battle
Trump has sent a mixed message about whether he wants to kill DACA, and appeal to his base, or find a way to keep the program.
He has offered no proposal, but is pushing Congress to find a legislative solution. And on Tuesday night, with this tweet, he seemingly opened to the door to reconsider the matter himself: “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!”
On Wednesday morning, Trump spoke to the media, saying “there were no mixed signals at all” and pressed for Congress to act.
Congress does not appear to have a DACA plan that would win majority support.
Speaker of the House Paul Ryan has said he hopes Congress will act to ensure that Dreamers remain in the U.S.
Jorge Barón, executive director of Northwest Immigrant Rights Project, has also been focused on Congress. He has been skeptical of the ability to legally challenge the Trump administration’s right to end DACA, since the program was created by executive action in the first place.
But he said Wednesday he had been convinced by Ferguson’s legal arguments, or at least convinced of the importance of making them. “Everyone knows this is going to be a tough battle and we need to fight it on many fronts,” Barón said.
Qingqing Miao, an immigration attorney who heads the Washington chapter of the American Immigration Lawyers Association, said the strength of the lawsuit may also depend, in part, on what the Trump administration does next. If it starts deporting Dreamers, that will add to the due-process argument, she said.
“I know it’s going to be a long road,” said Paúl Quiñonez Figueroa, a 22-year-old DACA recipient and organizer with the Washington Dream Coalition, who was at the news conference. But he said he was confident something good would come of it.
Graciela Nuñez, another 22-year-old DACA recipient, who works as a legal assistant for a law firm and plans to become an attorney herself, walked away from Ferguson’s news conference inspired.
Of the crusading lawyers she saw fighting for her, she said, “I want to be that.”