On Friday, September 8, 2017, the regents of the University of California and University of California President Janet Napolitano (University of California) filed a Complaint for Declaratory and Injunctive Relief in the United States District Court for the Northern District of California against the Department of Homeland Security (DHS) and Acting Secretary of Homeland Security (Secretary) Elaine Duke. That suit challenges DHS's September 5, 2017, decision to rescind the Deferred Action for Childhood Arrivals (DACA) program under the Administrative Procedures Act (APA) and the Fifth Amendment to the Constitution.
Unfortunately, the university's complaint seems to contradict its own arguments.
By way of background:
On June 15, 2012, the Secretary of Homeland Security [Janet Napolitano] announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal. They are also eligible for work authorization. Deferred action is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time. Deferred action does not provide lawful status.
That program came to be known as DACA. On September 5, 2017, Attorney General (AG) Jeff Sessions announced the rescission of DACA. As he stated:
The DACA program was implemented in 2012 and essentially provided a legal status for recipients for a renewable two-year term, work authorization and other benefits, including participation in the social security program, to 800,000 mostly-adult illegal aliens.
This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens.
. . .
The effect of this unilateral executive amnesty, among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences. It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.
In its lawsuit, the University of California attacked these statements, asserting:
[I]n his press Attorney General Sessions alleged, without offering any evidence, that DACA had "denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens." He also made the specious claim that DACA "contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences." ... That claim is facially false. DACA by its terms applies only to individuals resident in the United States since June 15, 2007 — five years before the program began.
With respect to the latter assertion, one would need to survey every unaccompanied alien child (UAC) who arrived in the so-called "surge" to assess why exactly each came to the United States. But, while correlation does not always equal causation, there was a significant increase in the number of UACs after DACA took effect. As the nonpartisan Congressional Research Service found:
Since FY2011, UAC apprehensions increased each year through FY2014: from 16,067 in FY2011 to 24,481 in FY2012 to 38,759 in FY2013 and 68,541 in FY2014 (Figure 1). At the close of FY2014, the Border Patrol had apprehended more UAC than in any of the previous six years and close to four times as many UAC as in FY2011.
Further, as the Washington Post reported in 2014, a leaked Border Patrol memorandum written by agents in the Rio Grande Valley that summarized interviews "with 230 youths and women from Honduras, Guatemala and El Salvador who were apprehended trying to enter the United States", revealed that "[t]he main reason the migrants had crossed into the United States was 'to take advantage of the "new" U.S. law that grants a free pass or permit' from the government, referred to in their home countries as 'permisos.'" Logically, this referred to DACA.
More critically, however, the University of California's complaint appears to undermine its first assertion above, that there is no evidence that DACA denied jobs to Americans by allowing those jobs to go to illegal aliens. In an apparent attempt to lay out facts to establish that it has standing, the University of California asserts:
As a result of Defendants' actions, the Dreamers face expulsion from the only country that they call home, based on nothing more than unreasoned executive whim. The University faces the loss of vital members of its community, students and employees.(Emphasis added.)
Similarly, the University of California later contends:
The University directly benefited from the DACA program, in its capacities as educator and employer. UC has approximately 4,000 undocumented students, a substantial number of whom are DACA recipients. Many of its staff members are also DACA recipients. These individuals make important contributions to University life, expanding the intellectual vitality of the school, filling crucial roles as medical residents, research assistants, and student government leaders, and increasing the diversity of the community. (Emphasis added.)
Two paragraphs later, the complaint avers:
The Rescission, which renders DACA recipients once more subject to deportation, has profound consequences for the University and its students. As a result of Defendants' actions, DACA recipients face the loss of their livelihood, education, and country. The University and all of its students will lose the contributions of valued colleagues and employees. The University also will lose intellectual capital and productivity, as DACA recipients are deprived of the work authorizations needed to serve in the professional roles in which both they and the University have so heavily invested.(Emphasis added.)
In setting forth the identity of the parties, the University of California states:
The University brings this complaint on behalf of itself and on behalf of all students currently enrolled at the University. Approximately 4,000 undocumented students are enrolled at the University, a substantial number of whom are DACA recipients. Some of these recipients are also employed by the University. (Emphasis added).
Finally, in setting forth the benefits of DACA, the University of California argues:
DACA recipients also make significant contributions to University life in their role as employees. They work at UC campuses and in UC medical centers as teaching assistants, research assistants, post-docs, and health care providers. DACA recipients often possess valuable foreign language skills. By allowing DACA recipients to work lawfully, DACA moved recipients out of the informal economy, increasing the pool of talent from which UC could fill positions at the University. (Emphasis added.)
At no point does the University of California assert that there were no United States citizens or lawful permanent residents who were available to take the jobs described. Nor is there any suggestion that these jobs would remain unfilled except by the DACA recipients who filled them, or that only DACA applicants had the necessary qualifications those jobs required.
To the contrary, there are logically any number of American workers who would appreciate the chance to "work at UC campuses and in UC medical centers as teaching assistants, research assistants, post-docs, and health care providers." This is particularly true given the fact that, as the University of California trumpeted in September 2016: "The UC system remains at the top of the world according to the 2016-17 Times Higher Education World University Rankings." Further proof is the fact that the University of California advertises that it "offers employees a comprehensive compensation package, including competitive salaries and a full range of benefits, services and programs."
There is an art to drafting pleadings. Ensuring that you don't undermine your own arguments is one of them.