New Court Filing Challenges Chad Wolf’s Appointment in Order to Preserve DACA

Immigrant youth filed an amended claim in federal court to challenge changes to the Deferred Action for Childhood Arrivals (DACA) program, arguing the changes were unlawfully implemented based on the illegitimate appointment of Acting Department of Homeland Security (DHS) Secretary Chad Wolf. The legal challenge not only calls out the Trump administration’s failure to abide by its own laws but could serve as a pathway to fully restore the DACA program.

The complaint filed on August 28, 2020, in the U.S. District Court for the Eastern District of New York challenges the recent changes the Trump administration made to the DACA program. The complaint adopts similar legal arguments used in a different lawsuit that challenged the appointment of USCIS Chief Ken Cuccinelli. In that case, a federal judge found Cuccinelli’s appointment unlawful and used it to strike down various policies issued during his tenure aimed at eroding the due process rights of immigrants, including directives that sped up asylum seekers’ initial screenings and then limited extensions of those hearings. 

“We are back in court because this is, yet again, the latest unlawful installment by the administration, and its latest assault on DACA is just as unlawful as the first,” Mayra Joachin, an attorney for the plaintiffs with the National Immigration Law Center, told Bloomberg.

The complaint centers on a July 28th memorandum issued by Wolf, which bars first-time applicants from obtaining DACA, requires annual renewal of work permits as opposed to every two years, and limits travel abroad under advanced parole. The complaint contends that the memorandum calling for all these changes should be invalidated because Wolf was unlawfully appointed and, therefore, lacked the authority to issue said memorandum. 

“The designation of Defendant Wolf as Acting DHS Secretary was made in contravention of the Appointments Clause of the U.S. Constitution, the Federal Vacancies Reform Act (“FVRA”) and the Homeland Security Act (“HSA”). As a result, Defendant Wolf lacks the authority to revoke critical components to the DACA program purportedly made through the Wolf Memorandum,” the complaint states.

Earlier this month, the Government Accountability Office determined that the previous head of DHS, Kevin McAleenan, had been improperly designed as the Acting DHS Secretary, and thus, appointments made by McAleenan would also be deemed invalid, including Wolf and Cuccinelli.  

Immigrant Legal Defense and Immigrant Defense Advocates put forth a similar argument when challenging the validity of 15-year contracts signed by ICE in order to expand immigration detention in California, noting that Wolf’s illegitimate appointment should place those contracts under legal jeopardy.

The Wolf complaint is the latest development in an ongoing battle between civil rights organizations and advocates alleging clear violations of law and procedure in the Trump administration's incessant war against immigrants. 

In this case, the complaint may serve to invalidate Wolf’s July 28th memorandum. If successful, it could lead to a general reinstatement of the DACA program in full, at least for a period of time.

NILC represents the group of young visionary people who filed the complaint, Make the Road New York, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School.