Judge restores DACA, rules acting DHS chief Chad Wolf had no legal right to limit it

Peter Weber
·2 min read

A federal judge in New York restored the Deferred Action on Childhood Arrivals (DACA) program in an unusual Saturday ruling, writing that Chad Wolf "was not lawfully serving as acting secretary of Homeland Security" when he issued a memo limiting the program in July.

The Trump administration has spent more than three years targeting DACA, which gives work and residency rights to certain immigrants brought illegally to the U.S. The Supreme Court struck down the administration's first attempt to end DACA in June, ruling that it hadn't followed the correct federal procedures for policymaking. Wolf then issued his memo, cutting DACA off to new applicants and shortening work permits to a year, from two years.

U.S. District Judge Nicholas Garaufis said Wolf had no authority to issue the memo because the Trump administration had violated the "plain text" of the Homeland Security Department's order of succession in appointing him. This is the fifth ruling against Wolf's authority since the Government Accountability found that Wolf, his deputy Ken Cuccinnelli, and former acting DHS Secretary Kevin McAleenan were all improperly appointed under federal laws on job vacancies. DHS has rejected that finding, and an unidentified DHS spokesperson called Garaufis "an activist judge" and said "DHS is exploring its options."

The Justice Department told Garaufis in a filing Friday that Trump had appointed FEMA chief Pete Gaynor acting head of DHS just long enough that he could issue a succession order so Wolf could lawfully serve as acting secretary, either right before or right after President Trump sent Wolf's nominations to the Senate in September, 10 months after he named him acting secretary. Garaufis said Gaynor could not legally jump in for the "sham purpose" of legitimizing Wolf's tenure, adding, "The court wishes the government well in trying to find its way out of this self-made thicket."

His ruling should reopen the program to new DACA applications, "of which the nonpartisan Migration Policy Institute estimates there are about 66,000," The Wall Street Journal reports, and "it will once more permit existing DACA recipients to travel legally outside the country." President-elect Joe Biden has said he will restore DACA to its original 2012 form.

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