Wednesday, November 26, 2014
Over a week ago, the President extended “deferred-action” status to millions of people who faced deportation for residing in the US in violation of federal immigration law. (He then defended his legal authority to do so.) Around the same time, in Juarez v. Northwestern Mutual Life Insurance Co., No. 14-cv-5107 (S.D.N.Y., filed July 9, 2014), US District Judge Katherine Forrest ruled that 42 U.S.C. § 1981 protects people with “deferred-action” immigration status from employer alienage discrimination.
In federal immigration law, extending “deferred action” status to someone is an exercise of administrative discretion to temporarily defer his or her removal for being unlawfully present in the US. Deferred action status doesn’t confer any legal right to remain in the US—it just signals the decision to temporarily delay that person’s deportation. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999).
But, someone with deferred-action status can get from the Department of Homeland Security the authorization to be employed in the US. See 8 CFR § 274a.12(c)(14) (authorizing grant of a work permit to “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). Such work authorization can be terminated or revoked at any time because of, among other things, a pre-set expiration date, or for good cause. See 8 CFR § 274a.14(a)-(b).
With such a work permit, a person with deferred-action status is no longer an “unauthorized alien” that employers must not knowingly employ, see 8 USC § 1324a(a), because an “unauthorized alien” can’t be someone who is “authorized to be so employed by this chapter or by the Attorney General,” 8 USC § 1324a(h)(3). The work permit itself, however, doesn’t change a person’s immigration status with respect to their eligibility to be admitted into the US. See Guevara v. Holder, 649 F.3d 1086, 1092 (9th Cir. 2011) (“There is no language in the statute or regulations that suggests aliens, not previously admitted, become ‘admitted,’ when they are granted employment authorization under 8 C.F.R. § 274a.12(c).”).
Employer Alienage Discrimination
What ifemployers refuse to hire or otherwise discriminate against a person because of his or her deferred-action immigration status? Discrimination based on a person’s citizenship status is called alienage discrimination. Title VII of the Civil Rights Act of 1964 does not expressly prohibit alienage discrimination. 42 U.S.C. § 2000e-2(a)-(c). Federal immigration law does prohibit alienage discrimination, 8 U.S.C. § 1324b(a)(1)(B), but only for US citizens, lawful permanent residents, refugees, and asylum grantees, see 8 U.S.C. § 1324b(a)(3). Even with a work permit, a person with deferred-action status falls outside that class of protected individuals. See Letter from Seema Nanda, Deputy Special Counsel, US Department of Justice, to David Burton, General Counsel, National Small Business Administration, dated Sep. 10, 2012.
Enter section 1981: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a) (emphasis added). Originally enacted by the Reconstruction Congress after the Civil War as part of the Civil Rights of 1870, section 1981 today expressly extends to “impairment by nongovernmental discrimination,” 42 U.S.C. § 1981(c), and has been read to prohibit alienage discrimination by employers, see Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998); Duane v. GEICO, 37 F.3d 1036 (4th 1994). However, an employer does not violate section 1981 by knowingly refusing to hire someone who is an “unauthorized alien” under 8 U.S.C. § 1324a(a) (for example, a deferred-action recipient without a work permit). In such a case, “that employer is discriminating on the basis not of alienage but of noncompliance with federal law.” Anderson, 156 F.3d at 180.
In Juarez v. Northwestern Mutual Life Insurance Co., Juarez alleged the following: He was a Mexican national living in New York. In 2012, he obtained deferred-action status, and then, as that status allows, he got a federal work permit and a Social Security number. During a job interview with Northwestern Mutual, Juarez was asked whether he was a US citizen or a legal permanent resident. He explained that he had deferred-action status. Northwestern Mutual refused to hire him, because it had a policy of refusing to hire anyone who is neither a US citizen nor a permanent resident.
Juarez sued, alleging alienage discrimination in violation of 42 USC 1981. On its motion to dismiss, Northwestern Mutual argued that Juarez had no section 1981 claim: Since its policy permitted employment of a US legal permanent resident as well as a US citizen, Northwestern Mutual refused to hire Juarez because he lacked a green card, not because he lacked US citizenship.
On November 14, 2014, District Judge Katherine Forrest denied the motion to dismiss. Judge Forrest concluded that section 1981 extends “to all lawfully present aliens, whether or not they have a green card.” An employer can’t escape section 1981 liability for discriminating against a member of a protected class simply by showing that it did not discriminate against every member of that class. And here, since the employer’s alleged policy discriminated on its face against “lawfully present aliens without green cards—a protected subclass,” Juarez had stated a claim under section 1981 by alleging that Northwestern Mutual had rejected him pursuant to that policy. For further support, Judge Forrest also discussed precedent interpreting the Equal Protection Clause to invalidate State laws because they discriminated against certain subclasses of lawfully-present aliens.
Hat tip: Jon Bauer