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Improper Appointment of Acting DHS Head Invalidates Rollback of DACA Program, Court Rules

Federal District Judge Nicolas G. Garaufis struck down the Administration’s most recent attempt to limit the Deferred Action of Childhood Arrivals (DACA) program. He held that the Acting Secretary of Homeland Security, Chad Wolf, had not been properly appointed and therefore, his recent rollback of DACA was invalid. Rules regarding appointment and succession are meant to ensure continuity of leadership but the Trump Administration has tried to circumvent those rules to place particular candidates at the top of DHS without following the normal Senate confirmation process.

The court’s objection to those actions has set the stage for close to a million people across the country to benefit or continue to benefit from DACA protections while they await the arrival of the next administration. Joe Biden has said that one of his first acts would be to reinstate DACA.

The backdrop of the recent federal court decision is dramatic. The U.S. Supreme Court ruled in June 2020 that the Administration had not properly terminated DACA, leading many (including DACA recipients themselves) to believe that DACA would remain intact and that individuals who were eligible but had not previously applied would be able to apply. Although the Supreme Court decision left the door open to the Administration to terminate DACA through proper administrative processes, the belief was that everything would revert to the “status quo ante” in the meantime. But the Administration saw the Supreme Court opinion differently. On July 28, 2020, Acting Director Wolf issued a memo explaining that the Administration would be reviewing DACA to possibly take the steps to terminate it (per the Supreme Court decision), but until that could occur, DACA would be restricted as follows:

  • DHS would not accept applications for initial DACA applications.
  • Renewals of DACA for current beneficiaries would be limited to one year, rather than the usual two years.
  • Advance Parole would be issued only for urgent humanitarian reasons or for the sake of a significant public benefit.

In response to the suit challenging the July 28th Wolf memo, Judge Garaufis said that, despite the Administration’s various tangled attempts to appoint and reappoint Chad Wolf properly, none of those attempts served to correct the problem. He wished “the government well in trying to find its way out of [its] self-made thicket.”

The ruling was not unanticipated because many other cases have raised the issue, including cases challenging new asylum rulesnew USCIS fees, the new public charge rule, and new rules regarding H-1B visas, and judges have been open to the argument. DHS is likely to appeal the ruling because the validity of DHS appointments will continue to thwart and undercut the Administration’s last-minute regulatory efforts.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 324
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About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

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