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Federal Judge: Chad Wolf and his DACA Rules are Unlawful

Posted by Matthew Green | Nov 27, 2020 | 0 Comments

On November 14, a New York federal judge ruled that Chad Wolf, acting secretary of the Department of Homeland Security, was not lawfully appointed and, as a result, his suspension of the Deferred Action for Childhood Arrivals (DACA) program was invalid.  In July of this year, Wolf issued a memorandum that severely limited the program.  As CBS News reports, the memo decreed that “current DACA recipients would only be eligible for one-year extensions of work authorization and protections from deportation” and “reaffirmed the Trump administration's policy of not accepting applications from immigrants who never had DACA status previously — even if they met all the prerequisites.” It also prohibited most travel abroad. The original DACA program granted not one but two years of renewable protection from deportation, in addition to work permits and the option to travel to other countries with permission.

Background on DACA

Enacted in 2012 by President Barack Obama, the DACA program offers protection to undocumented immigrants who were brought to the United States as children.  Due to its common grouping with the DREAM (Development, Relief, and Education for Alien Minors) Act, participants of DACA are often referred to as “dreamers.”  To be considered as such, undocumented immigrants must meet certain requirements.  “Dreamers” must have come to the United States before their 16th birthday, lived within the U.S. since mid-2007, been under the age of 31 in mid-2012, have no felony or significant misdemeanor convictions, are of no national or security threat, and either be enrolled in school or have a high school diploma or a record of service in the U.S. military. 

Voice of America recalls in an article the Obama administration argument for the program: “those who qualified were people who lacked a legal immigration status through no fault of their own, in many cases knew only the United States as home and were contributing to the country.” This reasoning, however, is not unanimously held; DACA has been the target of many anti-immigration politics.  In fact, President Trump moved to end the program in 2017 but, this past June, the Supreme Court blocked the attempt on the grounds that the administration did not follow proper procedures. One month after the ruling, Wolf issued the now-invalidated memo discussed above.

The November Ruling

In his ruling, District Court Judge Nicholas Garaufis writes that “the court holds that Mr. Wolf was not lawfully serving as Acting Secretary of Homeland Security under the Homeland Security Act (“HSA”) when he issued the July 28, 2020 memorandum.”  Because DHS failed to follow the order of succession as it was lawfully designated, “the actions taken by purported Acting Secretaries, who were not properly in their roles according to the lawful order of succession, were taken without legal authority.”  This means that orders like the July memo which effectively suspended DACA are now void.  Judge Garaufis cites a Government Accountability Office report which had found that both Wolf and Ken Cuccinelli, his acting deputy, were serving unlawfully and are therefore ineligible to run the agency under the Vacancies Reform Act. As noted by the Guardian, Wolf is the fifth Secretary of Homeland Security appointed by Trump in his single term of presidency; by comparison, George W. Bush and Barack Obama each had three people serve over the course of their two presidential terms.”  

Response 

The November 14 ruling is considered a win for advocates of undocumented immigrants. Gothamista reports that it is especially a cause for celebration for those from New York area, where the case was litigated. Of course, the decision will affect people across the nation, from the 650,000 people who hold DACA status today to the approximately 1.1 million immigrant teenagers and young adults who are eligible to apply to the newly reinstated program.  According to CBS News, among those 1.1 million who could qualify are 66,000 teenagers who turned 15 after September 2017, when the Trump administration closed DACA to new applicants.

This outcome is also in keeping with the plans of President-elect Joe Biden, who said he will protect “Dreamers” and provide them and other undocumented immigrants with a pathway to U.S. citizenship.  Until then, the fight for the protection of these young immigrants must continue: in a statement on November 15, DHS denounced the order and said it was ‘exploring its options to ensure its review of DACA continues as intended.'”

About the Author

Matthew Green

Managing Attorney. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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