June 9, 2016
VIA EMAIL AND U.S. MAIL
Richard H. Hart, President and Chief Executive Officer
Loma Linda University
11139 Anderson St.
Loma Linda, CA 92350
Craig Jackson, Dean, School of Allied Health Professions
Loma Linda University School of Allied Health Professions
Nichol Hall Room 1605
Loma Linda, CA 92350
emailthedean@sahp.llu.edu
Helen R Martinez, Assistant Dean, Admissions
Loma Linda University School of Allied Health Professions
Nichol Hall Room 1605
Loma Linda, CA 92350
hmartinez@llu.edu
Kent A. Hansen, General Counsel
Clayson, Mann, Yaeger, & Hansen, PLC
601 S Main St.
Corona, California 92882
khansen@claysonlaw.com
Re:

Loma Linda University’s Policy Regarding Students with Deferred Action
for Childhood Arrivals Immigration Status

Dear Mr. Hart, Mr. Jackson, Ms. Martinez, and Mr. Hansen:
We are deeply concerned by Loma Linda University’s (“LLU”) policy of excluding
young immigrants who have been granted permission to live and work in the United States under
the federal Deferred Action for Childhood Arrivals (“DACA”) program. On April 27, 2016,
LLU informed Veronica Velasquez that although she had been admitted to LLU’s doctorate of
physical therapy program, she would not be allowed to start or attend the program, scheduled to
commence on June 20, 2016, because she is a DACA recipient.

Executive Director Hector O. Villagra
Chair Shari Leinwand Vice Chair Susan Adelman Vice Chair Richard Barry
Chairs Emeriti Danny Goldberg Allan K. Jonas* Burt Lancaster* Irving Lichtenstein, MD* Jarl Mohn Laurie Ostrow* Stanley K. Sheinbaum Stephen Rohde
*deceased
1313 WEST EIGHTH STREET

LOS ANGELES

CA

90017

t 213.977.9500

f 213.977.5299

ACLUSOCAL.ORG

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LLU’s DACA policy is unlawful and rests upon several mistaken assumptions.
Excluding students like Veronica Velasquez from LLU simply because they have been granted
deferred action under DACA discriminates based on alienage in violation of 42 U.S.C. § 1981.
LLU’s policy is partly justified by an assertion that students without immigration status cannot
obtain professional licenses, but California prohibits state licensing boards from denying
licensure to an applicant based on his or her citizenship status or immigration status. Cal. Bus. &
Prof. Code § 135.5. LLU also states that DACA is only valid for one year, although it is valid
for renewable two-year periods. Further, DACA constitutes permission to remain in the United
States, provides a lawful means to work, and is subject to extensive background checks. Finally,
LLU justifies its policy on the basis that DACA students are not eligible for many types of
financial assistance, but students like Ms. Velasquez are eligible for private loans and may have
other means of affording their education.
LLU’s policy is not only discriminatory and unlawful, it is ill-advised. It prevents
eligible students like Ms. Velasquez—who have worked hard and want to make a meaningful
contribution to their families and to the community—from achieving their educational and
professional dreams. We urge LLU to cease its unlawful and discriminatory policy denying
enrollment to students with DACA immediately.
I.

Background
A.

DACA.

The DACA program, announced by the Department of Homeland Security in 2012,
allows certain immigrants who came to the United States as children and are present in the
country without a formal immigration status to remain in the country under “deferred action.”
These immigrants are eligible to obtain “deferred action” from the federal government upon
meeting specific criteria such as the attainment of a high school diploma and passing a rigorous
background check, which includes a criminal record background check. Persons granted
deferred action under DACA may stay in the United States for a renewable period of two years,
are shielded from removal proceedings during that time, and may be granted federal employment
authorization and a Social Security number.
Young immigrants receiving deferred action under DACA, like Ms. Velasquez, were
brought to the United States at an early age by their families in hope that they could have a better
life in the United States. They have overcome many obstacles and worked diligently in order to
succeed in school, to help their families, and to enrich their communities. As the President of the
United States has recognized, these young immigrants “are Americans in their heart, in their
minds, in every single way but one: on paper.” He explained, “it makes no sense” to deport
these “young people who study in our schools, they play in our neighborhoods, they’re friends
with our kids, they pledge allegiance to our flag.”1

1

President Barack Obama, Remarks on Immigration Reform, 2012 DAILY COMP. PRES. DOC. 1 (June 15,
2012), available at https://www.gpo.gov/fdsys/pkg/DCPD-201200483/pdf/DCPD-201200483.pdf.

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B.

Veronica Velasquez’s Admission and Subsequent Denial of Enrollment at
LLU when LLU learns she is a recipient of DACA.

Ms. Velasquez is a senior at California State University, San Bernardino. She will
graduate on June 18, 2016, with a Bachelor of Science in Kinesiology. When she was 10, her
family fled threats to their freedom in Saudi Arabia, where her father had worked for over 20
years for the American Embassy. Since arriving in the United States, Ms. Velasquez has worked
hard in school. Inspired by Bill Nye the Science Guy’s wacky experiments, she focused her
efforts in the sciences. She pulled all-nighters studying anatomy and physiology because she
was fascinated by the human body and its capacity for resilience. In college, Ms. Velasquez
found her calling during a physical therapy internship. She saw her passion for science and for
helping people during difficult times come together in her dream profession. Ms. Velasquez also
views a career in physical therapy as a means to help her mother, who works three jobs, support
the family.
In October 2012, Ms. Velasquez applied for DACA. After successfully completing the
extensive DACA application process—including being fingerprinted and passing a criminal
background check—she received DACA on March 21, 2013. She was also granted a work
permit that allows her to work lawfully in the United States, as well as a Social Security number.
After two years, Ms. Velasquez successfully renewed her DACA status, which is valid until July
5, 2017 and is subject to renewal.
In August 2015, Ms. Velasquez applied to LLU’s School of Allied Health Professions
doctorate of physical therapy program. On April 19, 2016, she received the news she had been
waiting for: based on the merits of her application, LLU had accepted her. Ms. Velasquez was
thrilled, and shortly thereafter she accepted LLU’s offer of admission, and LLU accepted her
deposit.
But on April 27, 2016, LLU sent Ms. Velasquez an email stating that due to LLU’s
“official policy on DACA students” she would not be allowed to attend LLU. See Attachment A
(Email from Ms. Esther Guerpo to Ms. Veronica Velasquez). Having already attended two
institutes of higher education without any issues (California State University, San Bernardino
and Riverside City College), and having been granted deferred action and work authorization by
the federal government, this news came as a shock.
On May 31, 2016, Ms. Velasquez spoke with Martin Aguirre, Director of International
Student and Scholar Services at LLU, who confirmed that LLU had a policy preventing students
with DACA from matriculating at LLU.
C.

Loma Linda University’s DACA Policy.

LLU’s April 27, 2016 email provided that “the Director of International Student Services
. . . has confirmed that unfortunately due to your DACA status we will not be able to allow you
to begin the [Doctorate of Physical Therapy] program until your status has changed to U.S.
Citizen or Permanent Resident.” The email went on to state that LLU “does not allow

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undocumented and/or unlawfully present international students to matriculate (i.e., start one of
our programs) for a number of reasons”: (1) DACA students are “disqualified from
matriculating due to the background check and my immigration status check”; (2) “Being a
religious-sponsored institution, we require legal/lawful status that covers the duration of the
program of study. Since DACA approval does not grant lawful status and is only good for one
year at a time . . . these two issues disqualify DACA’s for matriculat[ion] on these two issues.”;
(3) because LLU is a “private, parochial university,” and certain forms of financial aid are not
available to DACA students, DACA students would have to finance their studies through
“private funds, family sponsorship or go for private co-signed student loans, which are not easy
to get these days, to finance their studies”; and (4) for “ethical reasons, LLU does not believe it is
fair to take DACAs’ money with no assurance that they will qualify . . . to take licensure
boards.”
II.

LLU’s Policy Regarding Students with DACA Violates 42 U.S.C. § 1981

LLU’s exclusion of DACA recipients violates federal civil rights law. Section 1981 of
the federal Civil Rights Act of 1866 prohibits private actors from discriminating against people
on the basis of alienage. The law provides: “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). It is well-established that Section 1981
bars discrimination on the basis of alienage. See e.g., Graham v. Richardson, 403 U.S. 365, 377
(1971) (“The protection of this statute has been held to extend to aliens as well as to citizens.”);
Takahashi v. Fish & Game Commn., 334 U.S. 410, 419–20 (1948) (explaining that Section 1981
protects “‘all persons’” from policies “bearing unequally upon them either because of alienage or
color”); Sagana v. Tenorio, 384 F.3d 731, 740 (9th Cir. 2004), as amended (Oct. 18, 2004).
As amended by the Civil Rights Act of 1991, Section 1981 prohibits both public and
private actors from discriminating on the basis of alienage. The plain text of the revised statute
provides that the rights protected by the statute are “protected against impairment by
nongovernmental discrimination and impairment under color of State law.” § 1981(c) (emphasis
added).2 See Anderson v. Conboy, 156 F.3d 167, 180 (2d Cir. 1998) (Section 1981 “provides a
claim against private discrimination on the basis of alienage.”). Since the 1991 amendment to
Section 1981, courts in the Ninth Circuit have held that Section 1981 prohibits private alienage
discrimination. See Jimenez v. Servicios Agricolas Mex, Inc., 742 F. Supp. 2d 1078, 1087 (D.
Ariz. 2010); Zhang v. Ma Labs, Inc., 2005 WL 889724, at *2 (N.D. Cal. Apr. 15, 2005) (holding
that Section 1981 encompassed private discrimination on the basis of alienage).
Individuals who are undocumented are protected from alienage discrimination by Section
1981. In Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948), the Supreme Court
2

The enactment of § 1981(c) resolved a circuit split as to whether Congress intended Section 1981 to
prohibit private alienage discrimination. See Chacko v. Texas A&M University, 960 F. Supp. 1180, 1191 (1997)
(citing Cheung v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 913 F. Supp. 248, 251 (S.D.N.Y. 1996). Compare
Duane v. GEICO, 37 F.3d 1036, 1040 (4th Cir. 1994) (pre-1991 amendment, the statute prohibited private alienage
discrimination) with Bhandari v. First Nat’l Bank of Commerce, 887 F.2d 609, 610 (5th Cir. 1989) (per curiam)
(pre-1991 amendment, the statute did not prohibit private alienage discrimination).

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held that an “alien” is a “person” under Section 1981 by reading it in light of the Fourteenth
Amendment, in recognition that the language of Section 1981 was based in part on that
Amendment. Id. at 418-20. In Plyer v. Doe, 457 U.S. 202 (1982), the Supreme Court held that
for purposes of the Fourteenth Amendment, “[w]hatever his status under the immigration laws,
an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose
presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due
process of law by the Fifth and Fourteenth Amendments.” Id. at 210. See also, e.g., Yick Wo v.
Hopkins, 118 U.S. 356, 369 (1886) (“[The Fourteenth Amendment’s] provisions are universal in
their application, to all persons within the territorial jurisdiction.”) (emphasis added).
Accordingly, because undocumented persons are undoubtedly “persons” within the meaning of
both Section 1981 and the Fourteenth Amendment, they are clearly protected by Section 1981’s
prohibition on discrimination. See, e.g., Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 547
(M.D. Pa. 2007) (“aliens, regardless of their status under the immigration laws, are persons
under section 1981”), aff’d in part, vacated in part on other grounds, 620 F.3d 170 (3d Cir.
2010), cert. granted, judgment vacated on other grounds sub nom. City of Hazleton, Pa. v.
Lozano, 563 U.S. 1030 (2011), and aff’d in part, rev’d in part on other grounds, 724 F.3d 297
(3d Cir. 2013).
Notably, the courts have made clear that policies which, like LLU’s, discriminate against
a subset of noncitizens constitute discrimination based on alienage. See Nyquist v. Mauclet, 432
U.S. 1, 9 (1977) (making clear that classifications that discriminate between classes of
noncitizens are nonetheless classifications based on alienage, explaining that “[t]he important
points are that [the classification] is directed at aliens and that only aliens are harmed by it”);
Graham, 403 U.S. at 376, 376 (same); Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053,
1064-65, 1065 n.4 (9th Cir. 2014) (characterizing discrimination against DACA recipients who
were treated differently than other noncitizens as alienage discrimination).
Section 1981 clearly prohibits discrimination by private schools. Runyon v. McCrary,
427 U.S. 160, 172–73 (1976); Doe v. Kamehameha Schools/Bernice Pauahi Bishop Est., 416
F.3d 1025, 1027 (9th Cir. 2005), rev’d in part on other grounds, 470 F.3d 827 (9th Cir. 2006);
see also Pouyeh v. U. of Alabama/Dept. of Ophthalmology, 66 F. Supp. 3d 1375, 1382 (N.D.
Ala. 2014) (recognizing the availability of an alienage discrimination claim against a university
in regard to a discriminatory admissions policy, but dismissing the claim as plead). Section
1981 also applies to discrimination by private, religious schools. Fiedler v. Marumsco Christian
Sch., 631 F.2d 1144, 1150 (4th Cir. 1980); Brown v. Dade Christian Schs., Inc., 556 F.2d 310,
312-14 (5th Cir. 1977).
Accordingly, by excluding students like Ms. Velasquez admission simply because of her
status as a DACA recipient, LLU violates Section 1981’s prohibition on alienage
discrimination.3

3

LLU’s DACA policy may also violate California’s Unruh Civil Rights Act, Cal. Civ. Code § 51, et. seq.,
which prohibits discrimination on the basis of “immigration status.” Cal. Civ. Code § 51(a); see also Stevens v.

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In addition, for the same reasons that LLU’s policy regarding DACA students violates
Section 1981 of the federal Civil Rights Act, any LLU policy restricting enrollment to U.S.
Citizens or Lawful Permanent Residents, or denying undocumented students entry into LLU also
violates Section 1981. LLU’s email provides that Ms. Velasquez will not be allowed to begin
LLU’s physical therapy program until her “status has changed to U.S. Citizen or Permanent
Resident.” It also states that LLU “does not allow undocumented and/or unlawfully present
international students to matriculate.” As detailed above, refusing enrollment to a certain subset
of noncitizens based upon their immigration status constitutes discrimination on the basis of
alienage.
III.

LLU’s Policy Rests on Several Misconceptions Regarding DACA Recipients
A.

Under California State Law, DACA Recipients and Other Applicants Are
Eligible for Professional Licenses Regardless of Citizenship or Immigration
Status.

LLU’s reasoning for its DACA policy reflects a lack of familiarity with California law.
Contrary to LLU’s assertion, DACA recipients like Ms. Velasquez are eligible for professional
licenses under California law. In 2014, California Business and Professions Code § 135.5 was
amended to prohibit licensing bodies from denying licensure to an applicant based on his or her
citizenship status or immigration status:
135.5. (a) The Legislature finds and declares that it is in the best interests of the
State of California to provide persons who are not lawfully present in the United
States with the state benefits provided by all licensing acts of entities within the
department, and therefore enacts this section pursuant to subsection (d) of Section
1621 of Title 8 of the United States Code.
(b) Notwithstanding subdivision (a) of Section 30,4 and except as required by
subdivision (e) of Section 7583.23,5 no entity within the department shall deny

Optimum Health Inst.--San Diego, 810 F. Supp. 2d 1074, 1088-92 (S.D. Cal. 2011) (holding that private, religious
school violated California’s Unruh Civil Rights Act).
4
The law allows applicants for a professional license to provide an individual taxpayer identification
number in lieu of a Social Security number. Cal. Bus. & Prof. Code § 30(a)(2).
5

Cal. Bus. & Prof. Code § 7583.23 provides as follows: “The bureau shall issue a firearms permit when all
of the following conditions are satisfied: . . . (e) The applicant has produced evidence to the firearm training facility
that he or she is a citizen of the United States or has permanent legal alien status in the United States. Evidence of
citizenship or permanent legal alien status shall be that deemed sufficient by the bureau to ensure compliance with
federal laws prohibiting possession of firearms by persons unlawfully in the United States and may include, but not
be limited to, Department of Justice, Immigration and Naturalization Service Form I-151 or I-551, Alien
Registration Receipt Card, naturalization documents, or birth certificates evidencing lawful residence or status in the
United States.”

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licensure to an applicant based on his or her citizenship status or immigration
status.
(c) Every board within the department shall implement all required regulatory or
procedural changes necessary to implement this section no later than January 1,
2016. A board may implement the provisions of this section at any time prior to
January 1, 2016.
The California legislature’s decision to make noncitizens eligible for professional licenses
regardless of immigration status is fully consistent with federal law, which permits states to
provide for such eligibility. See In re Garcia, 58 Cal. 4th 440, 457 (2014) (holding that federal
law “grants a state the authority to make undocumented immigrants eligible” for professional
licenses) (citing 8 U.S.C. § 1621(d)).
LLU’s assertion that DACA recipients will not be able obtain professional licenses is
therefore unfounded. Regardless, students and their families should be able to determine for
themselves whether pursuing a particular course of education is worthwhile, not LLU.
B.

Grants of Deferred Action Under DACA Are Not Limited to 1 Year.

Likewise incorrect is LLU’s statement that grants of DACA are limited to one year.
Rather, under the DACA program, deferred action is granted for renewable two-year periods.
See USCIS, RENEW YOUR DACA, https://www.uscis.gov/humanitarian/consideration-deferredaction-childhood-arrivals-process/renew-your-daca (last visited June 2, 2016); Arizona Dream
Act Coal. v. Brewer, 818 F.3d 901, (9th Cir. 2016) (“If granted deferred action under DACA,
immigrants may remain in the United States for renewable two-year periods.”). For example,
based on her DACA renewal, Ms. Velasquez has now held deferred action status for a total of
three years—which is long enough to have completed LLU’s doctorate of physical therapy
program during that time. Cf., e.g., Matter of Pena-Diaz, 20 I. & N. Dec. 841, 842, 846 (BIA
1994) (involving case of noncitizen granted deferred action for nearly a decade, explaining that
the immigration agency had thereby “affirmatively permitted the alien to remain” for many
years).
C.

Deferred Action Constitutes Permission to Remain in the United States.

Although deferred action does not confer an affirmative immigration status, it does
reflect that the government has affirmatively granted its recipient permission to remain in the
United States. See, e.g., Georgia Latino Alliance for Human Rights v. Governor of Georgia
(“GLAHR”), 691 F.3d 1250, 1258-59 (11th Cir. 2012) (concluding that a noncitizen “currently
classified under ‘deferred action’ status . . . remains permissibly in the United States” “[a]s a
result of this status”); Matter of Quintero, 18 I. & N. Dec. 348, 349 (BIA 1982) (explaining that
“deferred action status is . . . permission to remain to remain in this country”); see also Arizona
Dream Act Coal. v. Brewer, 818 F.3d 901, 915 (9th Cir. 2016) (“[T]he federal government
permits [DACA recipients] to live and work in the country for some period of time, provided
they comply with certain conditions”).

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D.

DACA Recipients Have Passed Extensive Background Checks Conducted by
the Federal Government.

LLU’s policy also expresses a generalized concern that DACA recipients would be
unable to pass a background check. Yet, as noted above, Ms. Velasquez, like other DACA
recipients, has already passed an extensive background check conducted by the Department of
Homeland Security. See Arizona Dream Act Coal., 818 F.3d at 906 (explaining that, to qualify
for DACA, the noncitizen “must not pose a threat to public safety and must undergo extensive
criminal background checks”).
Further, to the extent that LLU believes that presence in the United States without
immigration status is a crime, such a belief would be erroneous. As the United States Supreme
Court has explained, “it is not a crime for a removable alien to remain present in the United
States.” Arizona v. United States, 132 S. Ct. 2492, 2505 (2012). See also In re Garcia, 58 Cal.
4th at 460 (explaining that “an undocumented immigrant’s unauthorized presence does not
constitute a criminal offense under federal law and thus is not subject to criminal sanctions”).
Indeed, in the context of determining whether undocumented immigrants would have the
requisite moral character and fitness to serve as lawyers in the state of California, the California
Supreme Court has emphasized that “the fact that an undocumented immigrant is present in
the United States without lawful authorization does not itself involve moral turpitude or
demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the
individual from taking an oath promising faithfully to discharge the duty to support the
Constitution and laws of the United States and California.” In re Garcia, 58 Cal. 4th at 460.
E.

DACA Recipients Are Not Categorically Unable to Finance Their Education.

In addition, notwithstanding LLU’s concern that without certain forms of financial aid
DACA recipients may not be able to afford to cost of attendance, Ms. Velasquez is able to
finance her education at LLU and made clear on her LLU application that her family income did
not meet the “criteria for economically disadvantaged”.
***
We urge LLU to reconsider its unlawful DACA policy immediately. LLU’s DACA
policy violates 42 U.S.C. § 1981 and prevents eligible students from following their dreams. In
addition, we ask that you reimburse Ms. Velasquez’s $40 application fee, $350 deposit to hold
her spot in the class of 2016, and $42.95 fee for a criminal background check, required for
enrollment, without delay.

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We look forward to your prompt attention to this matter and timely response. If you have
any questions, please contact Katherine Traverso at 213-977-5234 or ktraverso@aclusocal.org.

Sincerely,

Katherine Traverso
Staff Attorney, ACLU of Southern California
Jennie Pasquarella
Director of Immigrants’ Rights/Senior Staff Attorney, ACLU of California
Jennifer Chang Newell
Senior Staff Attorney, ACLU Immigrants’ Rights Project
CC:
Martin Aguirre, Director of International Student and Scholar Services

International Student & Scholar Services
Loma Linda University
Student Services Center, Room 1201D
11139 Anderson St.
Loma Linda, CA 92350
maguirre@llu.edu