Federal judge calls new DACA orders invalid

Federal judge calls new DACA orders invalid because Chad Wolf was ‘not lawfully serving’ as acting DHS head when he ordered a program suspension

  • Chad Wolf was ‘not lawfully serving’ as acting Homeland Security Secretary when making DACA-related orders this summer, a New York City judge said
  • Wolf’s July memo barring new DACA applications and limiting renewals to one year was determined invalid as a result
  • Judge cited an ‘invalid order of succession’ between former DHS Secretary Kristjen Nielsen, her replacement Kevin McAleenan and Wolf
  • The Trump administration attempted to end the DACA program, but was blocked by the Supreme Court

Chad Wolf was ‘not lawfully serving’ as acting Homeland Security Secretary when he approved limitations on DACA applications and renewals, meaning those orders are invalid. 

The ruling came from a federal Judge Nicholas Garaufis in the Eastern District of New York on Saturday – five months after Wolf signed a controversial memo in July. 

That month, Wolf released a memo saying new applications for DACA, a federal program that allowed some undocumented juveniles to avoid deportation, would not be accepted and renewals would be limited to one year pending a review.

The Supreme Court in June blocked the Trump administration’s attempt to outright end the program, and the July memo hoped to stall operations while the White House considered its next actions.

A federal judge in New York CIty ruled that Chad Wolf (pictured) was ‘not lawfully serving’ as acting Homeland Security Secretary when he issued the Wolf Memorandum

‘Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA [Homeland Security Act] when he issued the Wolf Memorandum,’ wrote Judge Garaufis, per Law and Crime.

In August, the Government Accountability Office issued a legal opinion that determined Wolf was not the correct official to assume the position at DHS.

Plaintiffs in the initial DACA case accused Wolf of serving unlawfully in the position and, as a result, his orders were illegitimate.

‘The U.S. Supreme Court has already admonished the Trump Administration for failing to ‘turn square corners’ by violating fundamental tenets of federal administrative law, designed to ensure executive agency accountability, in its drive to end the Deferred Action for Childhood Arrivals (‘DACA’) program.’ a August filing said.

 ‘Undeterred, the Administration continues to play catch-me-if-you-can with the law—and the lives of over a million young people—this time, in direct contravention of the requirements of federal appointment statutes and the Constitution. Those laws are basic to separation of powers principles and serve as an essential check on executive abuse of power.’

Judge Garaufis wrote that when former DHS Secretary Kristjen Nielsen resigned from the position in April 2019, her replacement, Kevin McAleenan, did not have proper authorization to take over the role.

Pictured: Former DHS Secretary Kristjen Nielsen

Pictured: Former acting DHS Secretary Kevin McAleenan

The Government Accountability Office in August said the transition from former DHS Secretary Kristjen Nielsen (left) to former acting  DHS SecretaryKevin McAleenan was not authorized – a point the federal judge agreed with 

The ruling claimed that because McAleenan lacked that authorization, his eventually appointment of Wolf was void based on ‘invalid order of succession.’

‘Based on the plain text of the operative order of succession, neither Mr. McAleenan nor, in turn, Mr. Wolf, possessed authority to serve as Acting Secretary. Therefore, the Wolf Memorandum was not an exercise of legal authority,’ the report said, per Law and Crime. 

Judge Garaufis also ruled that based on the proceedings thus far, he granted the plaintiff’s motion for class certification.

Pictured: President Donald Trump

Pictured: acting Homeland Security Secretary Chad Wolf

President Trump has formally nominated Chad Wolf (right) for the DHS Secretary position, but he had yet to garner enough votes in Senate

People take part in a kick of rally of the "Home Is Here" March for DACA and TPS on October 26, 2019 in New York City

People take part in a kick of rally of the “Home Is Here” March for DACA and TPS on October 26, 2019 in New York City

‘By issuing the Wolf Memorandum, Defendants’ actions affected all members of the proposed Class, and declaratory or injunctive relief to vacate the Wolf Memorandum would be an appropriate remedy with respect to each Class member,’ it read.

‘Likewise, for the members of the proposed Subclass whose applications USCIS failed to review according to the Napolitano Memorandum, the same relief would be appropriate for all of its members.’

Trump this summer formally nominated Wolf for the Secretary of Homeland Security job, but he has not yet garnered enough votes in Senate – keeping his position as ‘acting.’

This latest ruling comes as part of ongoing legal proceedings with Martín Jonathan Batalla Vidal, a DACA recipient and lead plaintiff in the lawsuit against Wolf.         


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