Fascinating Takeaways from California's DACA Lawsuit

By Andrew R. Arthur on September 14, 2017

Following the lead of the University of California (UC), the State of California, joined by the States of Maine, Maryland, and Minnesota, filed a Complaint for Declaratory and Injunctive Relief against the Department of Homeland Security (DHS) for DHS's rescission of Deferred Action for Childhood Arrivals (DACA). The 36-page complaint contains many interesting takeaways, few of which relate to the legal arguments therein.

First, as with the UC suit, the states appear anxious to prove that Attorney General Jeff Sessions was correct in stating that the effect of DACA was to deny "jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens." Specifically, the latest suit begins by reiterating UC's claims with respect to the number of jobs at that institution filled by DACA applicants:

UC also employs many DACA recipients at UC campuses and in UC medical centers as teaching assistants, research assistants, post-doctoral researchers, and health care providers. DACA recipients often possess valuable foreign language skills. As a result of DACA's termination, UC will lose the skills and talents of these employees.

Then it identifies additional positions that are held by DACA applicants in California's other state schools:

[T]he loss of DACA grantees as professors, teachers, teachers' aides, administrators, and nurses from our primary and secondary schools, as well as the California State University and California Community College systems, will frustrate California's interests in the education of all its residents and harm Californians.

In addition, that suit claims that "California state agencies and institutions employ at least 48 DACA grantees," and interestingly notes:

DACA grantees help further California's priorities to ensure, inter alia: public safety at the Departments of Corrections, Rehabilitation, Forestry, and Fire Protection; public health at the Departments of State Hospitals and Developmental Services; and infrastructure at the Departments of Transportation and Water Resources. California has expended time and funds to hire, train, and manage these DACA grantees, and stands to lose the value of that investment — and the employees' ongoing labor — due to Defendants' rescission of DACA.

This suggests that (at least) one DACA recipient may be working as a corrections officer and (at least) one as a fire fighter in California.

Also interestingly, it appears from that suit that DACA recipients have taken jobs in the tech world, as it quotes Apple Chief Executive Officer Tim Cook as stating: "250 of my Apple coworkers are #Dreamers." Apple would not be alone in the industry; The Hill reports that 39 DACA recipients are working at Microsoft.

It should be noted that, according to the Bureau of Labor Statistics (BLS), as of July 2017 there were 924,700 unemployed workers in California, for a 4.8 percent unemployment rate.

With respect to Maine, the suit states that "[a]n estimated 83 of" that state's "DACA recipients are employed." BLS statistics showed that there were 26,200 unemployed workers in Maine in July 2017.

For Maryland, according to the suit, 55 "percent of DACA-eligible individuals ... are employed," or some 11,000 aliens. It states: "DACA grantees work for both large and small businesses, which are critical to [Maryland's] economic viability. In addition, DACA grantees in Maryland work in a wide array of fields, including healthcare, education, law, and social services." The suit claims that "[b]oth the State and local jurisdictions employ DACA grantees, many of whom have [unspecified] specialized skills and qualifications."

BLS reported that Maryland had 129,600 unemployed workers in July 2017, for an unemployment rate of 4 percent; that percentage increased to 6.2 percent in Baltimore City.

For Minnesota, the suit claims that "[a]pproximately 5,442 DACA grantees are employed" in that state. BLS reports that there were 112,500 unemployed workers in Minnesota in July 2017.

Even these numbers do not tell the whole story. As my colleagues Karen Ziegler and Steve Camarota explained in their May 2017 report "The Employment Situation of Immigrants and Natives in the First Quarter of 2017":

[T]he official unemployment rate includes only those who have looked for a job in the last four weeks. It does not include those of working-age who dropped out of the labor force entirely — not working or looking for work.

The unemployment rate therefore does not represent the number of working-age people not working; nor does it measure the number of potential workers that employers can draw upon to fill jobs. As Ziegler and Camarota's paper demonstrates, the number of working-age American not working remains at or near a record high, even as the unemployment rate has improved.

Another interesting takeaway from the suit is the number of aliens who are purportedly eligible for DACA who have not taken advantage of that program. For example, it states that "[a]s of March 2017, [U.S. Citizenship and Immigration Services (USCIS)] had approved 222,795 applications from immigrants in California," although it also claims that the state "is home to more than 379,000 DACA-eligible residents." This would mean that 156,205 "DACA-eligible residents" in the Golden State did not apply for deferred action, 41 percent of the total.

For Maryland, the suit states that it "is home to more than 20,000 young people who are immediately eligible for DACA," but that by "the end of the first quarter of 2017, 11,513 initial applications ... for the DACA program in Maryland had been accepted by USCIS," a 42 percent non-application rate for Free-State aliens.

In 2016 in Minnesota, the suit claimed, "there were 16,000 DACA-eligible individuals living," but "[a]s of March 31, 2017, USCIS had approved [only] 6,255 initial DACA applications." This would mean that almost 61 percent of all aliens who were eligible for DACA in Minnesota failed to apply for, or were otherwise not approved under, the program. Given the fact that the program had a more than 87 percent approval rate (including pending cases) as of the third quarter of FY 2016, however, the former is more likely, in any given case, to be correct.

The final takeaway is the fact that, notwithstanding the claims of the Obama administration and its supporters that DACA was no different than any other exercise of deferred action, proponents of the program now view it quite differently, exposing the true nature of this quasi-amnesty.

For example, in June 2012, the Center for American Progress put out a fact sheet on DACA that included the following:

Does the president have the authority to do this? Yes. Deferred action is a type of prosecutorial discretion available to the president as part of routine immigration law. It allows the president to stop or suspend the deportation of an individual and to grant that person work authorization. Presidents from both parties have used deferred action frequently since 1971.(Emphasis added.)

Similarly, a "Q&A Guide" on DACA, issued by the American Immigration Council, read as follows:

What is deferred action?

When an immigrant is granted "deferred action," it means the Department of Homeland Security (DHS) has deemed the individual a low priority for immigration enforcement and has chosen to exercise its discretion and not deport the individual. Deferred action provides temporary relief from enforcement but may be revoked at any time. Deferred action is not amnesty or immunity. It does not provide lawful immigration status or a path to a green card or citizenship. It does not extend to any family members of the person granted deferred action.(Emphasis added.)

In fact, in his Rose Garden remarks on the day that DACA was announced, President Obama stated:

Now, let's be clear — this is not amnesty, this is not immunity. This is not a path to citizenship. It's not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people. (Emphasis added.)

As Justice Scalia made clear in his decision for the Court in Reno v. American-Arab Anti-Discrimination Committee, deferred action is a purely discretionary act that is not subject to court review in removal proceedings, pursuant to section 242(g) of the Immigration and Nationality Act (INA).

Despite these facts, the plaintiffs assert:

The rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and further their education.


The deprivation of these interests is directly traceable to the Defendants' rescission of DACA and cannot be sufficiently justified by federal interests.


Through the above actions, Defendants have discriminated against DACA grantees in violation of the equal protection guarantee of the Fifth Amendment.

Much of this is political posturing, the weaponization of the legal process for purely partisan purposes. It cannot be gainsaid, however, that DACA was intended from its inception to have a "ratchet effect", so that once it was implemented, it would create its own constituency that would mass to oppose its "revocation", as this suit demonstrates.