Justice Dept.: DACA Amnesty Recipients Not a "Protected Class"

By David North on August 3, 2015

An obscure Justice Department entity, the Office of the Chief Administrative Hearing Officer (OCAHO), has just made the citizen/alien/jobs situation a bit more complicated. It has ruled that a former illegal alien who has secured Deferred Action for Childhood Arrivals (DACA) status may be discriminated against in the job market because of that status (see details after the chart). This adds yet another layer to the citizenship-alienage-employment hierarchy, as this chart shows:

The Layer Cake of Citizenship/Alienage and Employment


Citizen/Alien Status Job or Jobs Notes
Natural-born United States citizen (USC) President and Vice President No other jobs with this formal requirement are known to me.
Several years status as a USC required Some elected positions A U.S. Senator must have been a USC for nine years and a Representative for seven; some states simply require citizenship at election; others require a number of years as USC, e.g., New Jersey's governor must have been a USC for 20 years.
USC status, naturalized or natural-born, is required Other elected positions and some in the security field Most Americans are in this category.
Permanent Resident Alien Private sector employers must not discriminate against them on the basis of their status. These are the green card holders.
U.S. national on the U.S. Mainland Can work in most jobs, but not others Applies only to people born in American Samoa.
Some nonimmigrant workers Can work in any job that they can get as long as in status This includes family members with E and G visas, some H-4s, etc.
Most nonimmigrant workers Can only work in government-approved jobs This category includes H-1Bs, H-2As, H2Bs, J-1s, L-1s, etc.
Deferred Action for Childhood Arrival (DACA) beneficiaries May work in most jobs, but discrimination against them is allowed The rules are still developing for this new group, see text.
Illegal aliens Are barred by law from working at any job While they cannot work legally, they are covered by some labor laws, such as the minimum wage and workers' compensation


The table above shows, in a broad-brush manner, the various classes of citizens, nationals, and aliens and how they are supposed to be treated, under federal law, in the labor market.

OCAHO is the government entity that handles charges of discrimination on the basis of citizenship/alienage. This is not a gung-ho enforcement agency; what it is best known for is the reduction in fines that ICE imposes on employers who violate the employer sanctions provisions of the law.

In this case, a DACA alien applied for a job in Arizona requiring him to have a driver's license, which he could not obtain because of Arizona state law. OCAHO defended the employer's right not to hire the alien without the license, and then went on to say that a DACA beneficiary was not a "protected individual as a citizen or national of the United States; an alien who is lawfully admitted for permanent residence", or other categories listed in the statute, and so the plaintiff could not sue under the federal law outlawing discrimination on the basis of citizenship or nationality.

If DACA people cannot use this provision of federal law (which I think was the right decision) it means that it is not against the law to discriminate against them in hiring.

Perhaps the administration will try to overturn the quoted part of this ruling; it certainly runs counter to the general thrust of the White House's immigration policy.

Note: For more on the peculiar legal status of American Samoans on the Mainland, see this blog.