Judge finds DHS Acting Secretary Wolfe Unauthorized to Restrict DACA

Judge Nicholas Garaufis of the U.S. District Court in Brooklyn ruled that Chad Wolf was “not lawfully serving” as acting secretary of the Department of Homeland Security (DHS) when he issued a memo limiting the protections of Deferred Action for Childhood Arrivals (DACA) beneficiaries and effectively closing the program to new applicants.

Wolfe’s memo was issued after the U.S. Supreme Court struck the Trump administration’s rescission of DACA because it had not followed the required administrative procedures. The decision left open the possibility that DHS could try again to rescind the program following procedures. Wolfe’s memo indicated that DHS was deliberating whether to do so and in the meantime would only limit current DACA recipients to 1-year extensions, instead of the 2-year period in the original program. He also said that DHS would not accept applications from immigrants who were applying for DACA for the first-time.

Judge Garaufis’s rationale for ruling the new memo unlawful is that Wolf’s did not have the authority to issue it because his installation violated the Homeland Security Act of 2002 and the Vacancies Reform Act, which lays out the requirements for a Senate-confirmed political appointee. Judge Garaufis stopped short of saying DHS had to accept DACA applications. 

Other federal judges and the Government Accountability Office have questioned the authority of Wolfe and Deputy Assistant/Director of USCIS Ken Cucinelli as well. DHS refutes the GAO finding.

MHC