Not a Lexis+ subscriber? Try it out for free.

Immigration Law

MALDEF Lawsuit: Wolf DACA Memo Illegal

MALDEF, Sept. 3, 2020

"Chad Wolf is unlawfully serving as Acting Secretary of Homeland Security and therefore his memo placing new restrictions on DACA must be nullified, according to a federal lawsuit filed today.

MALDEF (Mexican American Legal Defense and Educational Fund) and Munger, Tolles & Olson LLP filed the suit on behalf of organizations that work with immigrants and DACA recipients. The groups are challenging a July 28 memo issued by Wolf that sets a one-year limit on renewals of Deferred Action for Childhood Arrivals (DACA) and the accompanying work authorization and blocks new DACA applications.

“The Trump administration’s irresponsible governance has consequences under our Constitution and statutes,” said Thomas A. Saenz, MALDEF president and general counsel.  “Trump’s refusal to nominate candidates to lead the Department of Homeland Security – even when his own party controls the Senate that must confirm such appointments – means that the punitive Wolf memorandum was unlawfully issued.”

Since 2012, DACA has granted two-year protection against deportation and work authorizations to hundreds of thousands of young undocumented immigrants who came to the United States as children.

Attorneys argue that the Trump administration appointment violates the Federal Vacancies Reform Act (FVRA) and Homeland Security Act (HSA) because Wolf has exceeded the time allowed to serve as acting secretary and his appointment did not comply with the rules of succession set forth in the statutes.

The FVRA allows acting officials to serve 210 days before a permanent candidate is nominated or rejected by the Senate. The act also spells out which officials in a department’s chain of command can be tapped to fill a vacancy. Wolf, who was appointed as acting head of the Department of Homeland Security (DHS) in November 2019 was not in the line of succession to be appointed, according to the lawsuit.

“Our country is a nation of immigrants and dreamers.  The young people who benefit from DACA go to the heart of that dream—they went to our schools, served in our military, and want nothing more than to contribute to the betterment of our communities,” said E. Martin Estrada, of Munger, Tolles & Olson. “Defendants’ efforts to undermine DACA misapprehend and distort core American principles, and, not surprisingly, were done without lawful authority.  We ask that the Court enjoin Defendants’ illegal actions aimed at restricting young people from receiving the benefits of DACA.”

In August, the Government Accountability Office issued a report that concluded Wolf was one of two officials at DHS whose appointment violates the FVRA and HSA. That report notes that the administration improperly appointed officials beginning in 2019, when then-Sec. Kirstjen Nielsen was forced out.

And in March, a federal judge in Washington D.C. ruled that another Trump appointee, Kenneth T. Cuccinelli II, was unlawfully appointed to lead the United States Citizenship and Immigration Services.

Additionally, the complaint includes a statutory claim that challenges Wolf’s appointment and the way the memo’s directives were enforced.

“This administration’s latest attack on DACA is without force of law and should be set aside immediately,” said Ernest I. Herrera, staff attorney at MALDEF.  “Chad Wolf has no legal authority to upend the lives of hundreds of thousands Dreamers living, learning, and working in the country that they call home.”

Plaintiffs in the case include Santa Fe Dreamers Project in New Mexico, the Spanish Community Center in Joliet, Illinois and American Gateways in Austin, Texas.

Read the complaint here."