Our Section Chair, Susan Cohen, has been quoted in an analytical piece by Zosha Millman, editor of The Lexblog Network, examining the impact of last week’s presidential election result on the Deferred Action for Childhood Arrivals initiative.
The Supreme Court will hear the Obama administration’s appeal of the 5th Circuit Court’s decision to uphold the nationwide injunction of the expansion of Deferred Action for Children (DACA) and implementation of Deferred Action for Parents of Americans (DAPA) set by federal Judge Andrew Hanen in Texas.
In addition to the procedural issues of comment and potential harm discussed in the lower courts, the Supreme Court asked both, “the federal government and the states suing it to address whether the executive actions on immigration violate the Constitution’s take care clause — an issue that was not definitively decided by lower courts that have ruled on the case.”
On Tuesday, December 1, the U.S. Supreme Court handed the Obama administration a “small procedural vactory” and refused the request of Texas and other states for a 30-day extension to file briefs in support of the lawsuit blocking the Obama administration’s immigration executive action on DACA and DAPA. Instead, the Court accepted the Justice Department’s eight day extension request. The Supreme Court will likely decide in January whether or not to hear the case this term. If the Supreme Court hears the case during the current term, the decision would likely be published in June, providing quite the fan-flaming event during the 2016 presidential election.
On November 9, 2015, the United States Court of Appeals for the Fifth Circuit issued their 124 page decision upholding a nation-wide injunction of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Based on the 5th Circuit decision, the 2012 DACA program remains intact, however the 2014 expansions are enjoined. The 5th Circuit head oral arguments over six months ago, and the delay in issuing their decision likely forecloses the possibility of a formal appeal being heard by the U.S. Supreme Court before the 2016 presidential elections. However, as the Obama administration filed an appeal today (November 20th), the Supreme could hear the case this term, hold it for next term, or decline to hear the case altogether.
Continue Reading 5th Circuit Upholds Deferred Action for Parents: Next Stop Supreme Court?
USCIS announced that Deferred Action for Childhood Arrivals (DACA) recipients of employment authorizations documents (EAD) after February 16, 2015, with validity longer than two years, were “likely mistakenly issued and must be returned.” According to a USCIS Factsheet:
“Individuals who are required to return three-year EADs and have not done so will be contacted by USCIS by phone or in-person. For the purpose of retrieving these three-year EADs, USCIS may visit the homes of those individuals who have not yet returned their invalid 3-year EAD or responded to USCIS. When contacting individuals in person, the USCIS employees will show the individuals their credentials. USCIS will make every attempt to call the individual in advance of the visit…
The reason for this action is that, after a court order in Texas v. United States, No. B-14-254 (S.D. Tex.) was issued, USCIS could approve DACA deferred action requests and related employment authorization applications only for two-year periods.”
EADs mailed before February 16, 2015 are not subject to this requirement as they were issued before the court injunction.
Further information and contact details can be found on the USCIS factsheet. Please contact your Mintz Levin attorney if you have any questions as to whether you are affected by the court injunction.
With Michael Arnold
In a novel case, a New York federal court judge recently denied an employer’s motion to dismiss a Section 1981 alienage discrimination class action lawsuit. The lawsuit alleges that Northwestern Mutual Life Insurance Company violated that Act by implementing a policy of hiring only U.S. citizens and lawful permanent residents.
In Juarez v. Northwestern Mut. Life Ins. Co., the plaintiff, Ruben Juarez, a Mexican national living in New York City was a Deferred Action for Childhood Arrivals (“DACA”) employment authorized individual. Through DACA, President Obama in 2012 authorized the Department of Homeland Security to exercise discretion in granting deferred action to qualified immigrant youth and authorize them to remain in the U.S., obtain an employment authorization document (EAD), and obtain a Social Security number. The EAD authorizes the holder to work for any employer, has a two-year validity period, and is renewable. In other words, it makes an individual legally authorized to work in the U.S. for a specified period of time, and it can be extended without sponsorship from the employer. Juarez applied for an internship at Northwestern Mutual, but an HR representative told him that regardless of his DACA status, he could not work for the company because “you have to be a US citizen or have a green card.”
A class action lawsuit followed claiming that Northwestern Mutual’s hiring policy is discriminatory on its face and violates 42 U.S.C. §1981 – a federal civil rights statute. Section 1981 makes it illegal for employers to discriminate on the basis of race or alienage in making and enforcing contracts, including employment contracts.
Northwestern Mutual tried to have the claim thrown out, but Judge Forrest of the Southern District of New York denied its request because Section 1981’s protection against job discrimination “extends to all lawfully present aliens,” not just green-card holders. Therefore, Juarez’s allegation that Northwestern Mutual’s policy excluded a lawfully present individual (i.e. those with a DACA immigration status) from potential employment was sufficient to state a Section 1981 claim.
Judge Forrest was also not persuaded by the fact that Northwestern Mutual’s policy clearly invited other non-U.S. citizens authorized to work in the U.S. (i.e. legal permanent residents, also referred to as Green Card holders ) to apply for employment. She cited a Second Circuit in Brown v. Henderson, which held that a plaintiff need not plead discrimination against all members of a protected class in order to state a viable claim under Title VII. The analysis was no different under Section 1981: “A defendant is not insulated from § 1981 liability for intentional discrimination against some members of a protected class merely because not every member of the class becomes a victim of discrimination.”
What This Means for You
As this case demonstrates, employers should be mindful of hiring policies that could negatively affect those individuals who are legally eligible to work in the U.S., but who are not U.S. citizens or lawful permanent residents. Employers should train Human Resources personnel to recognize the variety of status or work authorizations by which individuals who are not U.S. citizens are legally authorized to work here. This requirement will take on even more importance in light of President Obama’s Executive Order on Immigration, signed on November 20, 2014, which may potentially authorize additional classes of individuals who will be eligible to work in the U.S.
In general, an employer may make hiring decisions by distinguishing only between lawfully present and unlawfully present individuals (or immigrants). But even when confronted with certain job applicants with time-limited work authorizations, we do not believe that this decision prohibits employers from asking applicants whether they will require sponsorship from the employer to work for that specific employer and thereafter refusing to hire them on that basis. Under the anti-discrimination provision of the Immigration and Naturalization Act, nonimmigrant visa holders may not claim a violation of that law for failure to hire based on their need for sponsorship from the hiring employer to be legally allowed to work for that employer.
We do not think they could claim a §1981 violation either. People without legal authorization to work for the hiring employer would lack standing as a protected class against that employer since the reason for the failure to hire would not be a candidate’s alienage, but rather the fact that the candidate does not possess legal authorization to work for the hiring employer.
The outcome of the Juarez case remains to be seen, but the ultimate decision will have implications for DACA recipients and potentially for future beneficiaries of the President’s November 20, 2014 Executive Order on Immigration.
According to The Huffington Post, the State of Arizona and the US Federal Government are once again tussling over domain with regard to benefits based on immigration status. This round it’s driver’s licenses and DACA beneficiaries.
The Obama Administration, in a friend-of-the-court brief,
“urged a court to reject Arizona Gov. Jan Brewer’s appeal of a ruling that blocks the state from denying driver’s licenses to young immigrants who have avoided deportation under a change ordered by the president.”
According to the filing, these immigrants, who have avoided deportation under the Deferred Action for Childhood Arrivals (DACA) policy, are the only immigrants whose documents are not accepted by the Arizona state government for the purpose of obtaining a driver’s license.
Governor Brewer is asking the 9th Circuit Court to review the ruling. The US Justice Department is arguing that no review is warranted.
“The [Arizona] state driver’s license policy was a reaction to steps the Obama administration took in June 2012 to shield thousands of immigrants from deportation and expand their legal rights. About 580,000 people have been approved to take part in the program, including about 20,000 in Arizona.
Brewer issued an executive order in August 2012 directing state agencies to deny driver’s licenses and other public benefits to young immigrants who get work authorization under the program.”
As the rules governing eligibility for driver’s licenses are determined at the state level, DACA does not automatically provide its recipients access to a state driver’s license. Nonetheless, DACA recipients who obtain work authorization and Social Security numbers are eligible to obtain a license in almost every state.
Only Arizona and Nebraska adopted policies excluding DACA recipients from driver’s license eligibility. These policies in Nebraska are also under challenge in court.