Judge Says DHS Head Wasn’t Lawfully Serving When He Issued Memo Suspending DACA

November 15, 2020 Updated: November 15, 2020

A federal judge in New York ruled on Nov. 14 that Acting Department of Homeland Security (DHS) Secretary Chad Wolf wasn’t lawfully serving in his role when he issued a memorandum suspending the Deferred Action for Childhood Arrivals (DACA) program, an Obama-era executive action that granted amnesty to illegal aliens who entered the United States illegally as minors.

“DHS failed to follow the order of succession as it was lawfully designated,” U.S. District Judge Nicholas Garaufis wrote in a 31-page opinion (pdf). “Therefore, 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.”

Wolf issued a memorandum on July 28 putting the DACA program on hold, pending a review by the DHS. The Supreme Court ruled a month earlier that President Donald Trump failed to follow federal rule-making procedures when he issued an order to end the program.

About 650,000 people are part of DACA, which allows illegal aliens who were brought to the country as children to legally work and shields them from deportation.

Karen Tumlin, an attorney who represented a plaintiff in one of the lawsuits that challenged Wolf’s authority, called the ruling “another win for DACA recipients and those who have been waiting years to apply for the program for the first time.”

President Donald Trump at one point offered to continue the DACA program if the Democrats agreed to fund border wall construction in exchange. The Democrats didn’t accept the deal.

The Government Accountability Office said in August that Wolf and his acting deputy, Ken Cuccinelli, were improperly serving and ineligible to run the agency under the Vacancies Reform Act. The two have been at the forefront of administration initiatives on immigration and law enforcement.

In Garaufis’ ruling on Nov. 14, the judge wrote that DHS didn’t follow an order of succession established when then-Secretary Kirstjen Nielsen resigned in April 2019. Kevin McAleenan, who succeeded Nielsen until he resigned in October 2019, also didn’t have statutory authority to hold the position, Garaufis wrote.

Epoch Times Photo
President-elect Donald Trump meets with President Barack Obama in the Oval Office of the White House on Nov. 10, 2016. (Pablo Martinez Monsivais/AP Photo)

The judge’s ruling is part of litigation that was brought against the government during the Obama administration in 2016.

DHS didn’t immediately respond to a request by The Epoch Times for comment on the ruling. The department has maintained that Wolf’s appointment was legal even without Senate confirmation, which is still pending in the final weeks of the Trump administration.

The Associated Press contributed to this report.

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