IRLI Files Brief Defending University of Georgia’s Right to Refuse Illegal Alien Admission

November 15, 2017

IRLI brief explains how DACA is illegal and no court can enforce it

WASHINGTON – The Immigration Reform Law Institute has filed an important friend-of-the-court brief in the Eleventh Circuit case Estrada v. Becker, defending the right of the University of Georgia system to deny admission to illegal aliens whose deportation has been deferred under the former Obama Administration’s controversial DACA program.

“Texas and thirteen others states withdrew their lawsuit challenging the constitutionality of DACA, believing that President Trump’s declaration in September that he was rescinding DACA as an unlawful abuse of power had resolved the controversy,” noted IRLI Director of Litigation Christopher Hajec. “But instead we have seen a nationwide surge in lawsuits by illegal aliens who claim that DACA somehow gives them lawful presence in the United States-with all the benefits and privileges that lawful admission to this country provides-even though DACA is just a refusal by DHS to do anything about their unlawful status. Our IRLI brief makes it clear that such a refusal in no way has the force of law.”

Estrada v. Becker is an appeal from the dismissal in an Atlanta federal district court of a lawsuit by three noncitizen students who called themselves “deferred action holders” and accused the Georgia university system of violating their rights to equal protection and undermining the supremacy of federal immigration law, by issuing university admission rules that treat DACA beneficiaries as illegal aliens. The students are represented by the Mexican American Legal Defense Fund (MALDEF), a Texas-based legal action group which has brought similar suits in other states. MALDEF specializes in suing local governments and agencies with limited legal resources. In this case, MALDEF has targeted Georgia university officials who seek only to comply with federal and state laws restricting eligibility for public benefits like post-secondary education to citizens and lawfully present aliens.

The district court held that DACA gave MALDEF’s clients no special privileges or legal status, and therefore their discrimination and preemption theories were fatally flawed.

The IRLI brief explains that “DACA lacks the force of law because it is not a valid form of ‘deferred action’ at all, but is ultra vires,” or beyond the authorized power of DHS or the President himself. If being authorized to stay under DACA constituted lawful presence, as MALDEF’s radical theory has it, the Georgia students would be both lawfully and unlawfully present at the same time under federal law.

“There has been an extraordinary wave of well-funded litigation attacking every attempt by President Trump to fulfill his duty to faithfully enforce federal law,” observed IRLI Executive Director and General Counsel Dale L. Wilcox. “The government should have stepped in to advise the court on an obvious point: that federal immigration law does not authorize the ‘prosecutorial discretion’ exercised in DACA, or DAPA as a federal program, at all. MALDEF’s theory that DACA confers lawful presence is completely without foundation, as is their wild claim that, when DHS temporarily stays their removal from this country, that deferral magically makes an illegal alien legal. Until the rescission of DACA takes full effect next year, IRLI is mobilizing its legal team to make sure that, whichever way the political winds may blow, federal courts have a critical understanding of the fundamental difference between lawful and unlawful status in American immigration law.”

The case is Estrada v. Becker, No. 17-12668 (U.S. Court of Appeals for the Eleventh Circuit).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]