Federal Appeals Court rules against DACA student at NCSU who sued ExxonMobil

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  • The 4th U.S. Circuit Court of Appeals has ruled against an immigrant student at N.C. State University who sued ExxonMobil. Aldo De Leon Resendiz claimed "alienage discrimination."
  • De Leon argued that the oil company illegally rescinded an internship offer. Company policy banned hiring workers who lacked permanent work authorization.
  • De Leon entered the United States illegally but had his deportation deferred under the Obama-era DACA program. That deferral allows him to secure only temporary work authorization.

The 4th U.S. Circuit Court of Appeals has ruled against an immigrant student at N.C. State University who sued ExxonMobil for discrimination. The student claimed the oil company illegally rescinded an internship.

The unanimous Appeals Court decision affirmed a trial judge’s ruling against Aldo De Leon Resendiz.  

“De Leon received deferred deportation and eligibility for temporary work authorization under the Deferred Action for Childhood Arrival program,” wrote Judge Julius Richardson. “While a student at North Carolina State University, he was recruited by ExxonMobil for an internship. De Leon told ExxonMobil that he is not a United States citizen, but erroneously represented that he had permanent work authorization under federal law.”

“Consistent with a company policy allowing citizens and noncitizens alike to be hired so long as they had permanent work authorization, ExxonMobil offered De Leon the internship. De Leon accepted. But, when De Leon submitted his paperwork, it showed that he lacked permanent work authorization. So — consistent with its policy — ExxonMobil rescinded its offer,” Richardson explained.

De Leon had sued under a federal equal rights provision known as 42 U.S.C. § 1981.

“De Leon claims that ExxonMobil’s policy discriminates against aliens as prohibited by 42 U.S.C. § 1981. But § 1981 only protects against intentional discrimination, and De Leon fails to allege that ExxonMobil intentionally discriminates against aliens,” Richardson wrote. “While ExxonMobil’s policy requiring that applicants have permanent work authorization will only exclude aliens, discriminatory impact is not enough.”

“And, given ExxonMobil’s policy, De Leon did not plausibly allege that ExxonMobil intended to discriminate against aliens. De Leon has thus failed to state a claim for alienage discrimination,” Richardson concluded.

De Leon arrived illegally in the United States at age 8. His deportation was deferred under the federal DACA program adopted during the Obama administration.

“Deferred-action status under DACA did not grant De Leon a lawful immigration status,” Richardson explained. “But it permitted him to stay in the United States and allowed him to apply for temporary work authorization. De Leon was granted temporary work authorization, which means he was no longer an ‘unauthorized alien’ that employers must not knowingly employ, because an ‘unauthorized alien’ excludes aliens ‘authorized to be so employed by this chapter or by the Attorney General.’”

De Leon “excelled” as an engineering student at N.C. State University. He had an opportunity to apply for an internship with ExxonMobil.

“On his application, he accurately represented that he was a Mexican citizen who was authorized to work in the United States. But he erroneously represented that his work authorization was permanent,” Richardson wrote.

“Recall that DACA does not provide recipients with legal immigration status. It only defers any enforcement action,” the 4th Circuit opinion explained. “A DACA recipient’s work authorization turns not on their immigration status but on an application ‘for work authorization during this period of deferred action, . . . as permitted under regulations long predating DACA’s creation.’ So while De Leon could — and did — receive temporary work authorization under those regulations, he did not have permanent work authorization.”

De Leon also ran into trouble securing a Transportation Worker Identification Credential card, a Department of Homeland Security requirement for entry to the ExxonMobil facility where he would work. Those cards are not available to DACA recipients.

ExxonMobil rescinded its internship offer once it learned that De Leon did not have permanent work authorization.

The 4th Circuit panel agreed with De Leon that court precedent allowed him to bring a complaint for “alienage discrimination.” But he would have had to prove “that (1) the defendant intended to discriminate on the basis of alienage, (2) the discrimination interfered with a contractual interest, and (3) the interference with a contractual interest would not have happened but for the plaintiff’s alienage,” Richardson wrote.

“De Leon’s claim fails at the first step: he fails to plausibly allege intentional discrimination,” Richardson explained. “The Supreme Court has been clear: Section 1981 ‘can be violated only by purposeful discrimination.’”

The plaintiff failed to offer evidence of intentional discrimination. “He does not allege that the policy blatantly tells aliens that they need not apply. Nor could he, since ExxonMobil extended him an offer despite knowing that he was an alien,” Richardson wrote. “He does not allege that requiring permanent work authorization is an irrational way to choose employees and so qualifies as a proxy for alienage. And he does not allege — indeed he has affirmatively disclaimed — that there are any facts beyond the policy itself supporting an inference of intentional discrimination.”

“ExxonMobil hired De Leon despite knowing he was an alien. So its policy does not facially screen out all aliens,” the 4th Circuit opinion explained. “And ExxonMobil revoked his offer only after learning that he lacked permanent work authorization. Without any indication whether ExxonMobil would also revoke an offer to a citizen who it likewise discovered lacked permanent work authorization, De Leon cannot plausibly allege that ExxonMobil treated him worse than a citizen.”

“Maybe the impact of ExxonMobil’s policy requiring permanent work authorization is felt only by aliens. But discriminatory impact alone does not suffice. The discrimination must be intentional,” Richardson wrote.

De Leon could have directed his complaint to lawmakers in Washington. “If Congress changed the law tomorrow to make all aliens eligible for long-term employment, then without changing a single word in the challenged policy, all aliens would be eligible for employment at ExxonMobil,” Richardson wrote. “So it cannot be that ExxonMobil’s policy, standing alone, creates a reasonable inference of intentional discrimination against aliens. Rather than grant permanent work authorization to all aliens, the federal government limits the categories of aliens eligible for long-term employment.”  

“These are the federal government’s decisions, not ExxonMobil’s. And there is no principle by which we could impute to ExxonMobil a discriminatory intent based on them,” Richardson added.

Judges Marvin Quattlebaum and Henry Floyd joined Richardson’s opinion.

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