Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

DACA Case Revised to Challenge Chad Wolf Power, Program Changes

Aug. 28, 2020, 5:48 PM

A group of young, undocumented immigrants in New York have filed a federal court challenge to recent changes to the Deferred Action for Childhood Arrivals program they say are unlawful and were implemented by an illegitimate agency head.

Their revised complaint, filed Friday at the U.S. District Court for the Eastern District of New York in Brooklyn, is the first to challenge the entirety of the latest changes to the DACA program.

“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,” said Mayra Joachin, an attorney for the plaintiffs with the National Immigration Law Center.

Acting Homeland Security Secretary Chad Wolf issued a July 28 memorandum that bars first-time applicants from applying for DACA, requires recipients to apply for work authorization annually instead of every two years, and limits their’ ability to travel outside of the U.S. The plaintiffs allege those changes violate the U.S. Constitution and the Administrative Procedure Act, and must be set aside.

Their complaint also says Wolf lacked the authority to issue the July 28 memorandum because he was improperly designated as acting DHS secretary. The Government Accountability Office determined earlier this month that the incorrect official—Kevin McAleenan—assumed the title of Acting DHS Secretary when the last U.S. Senate-confirmed secretary—Kirstjen Nielsen—resigned in April 2019. Subsequent appointments made by McAleenan were also deemed invalid, including Wolf and Ken Cuccinelli.

President Donald Trump has since formally nominated Wolf to the position, pending Senate confirmation.

Joachin said Wolf’s formal nomination, first announced by Trump in a tweet, shouldn’t affect the lawsuit’s claims. “He’s already exceeded the time limits under the law,” she said. “So as a result, when he issued the memorandum it was issued after the time he was required to step out of the office.”

The USCIS declined to address the new allegations, citing its standing policy of not commenting on pending litigation.

Represented by the NILC, Make the Road New York, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School—those suing are asking the court to invalidate the July 28 memo and require the government to process first-time DACA applications, advance parole requests, and renewals under the terms of the original DACA program.

Trump is a named defendant in the lawsuit, as are Wolf, acting head of U.S. Citizenship and Immigration Services Joseph Edlow, and the USCIS and DHS.

Changes to DACA in Lieu of Reinstatement

Plaintiffs in the case first sued the Trump administration after its attempt in 2017 to terminate the Obama-era program that gives young, undocumented individuals who came to the U.S. as children protection from deportation and work authorization.

After a lengthy court battle, the U.S. Supreme Court ultimately deemed the Trump administration’s efforts to kill DACA “arbitrary and capricious,” and ordered the program returned to its pre-September 2017 status.

But instead of reinstating the program, despite orders from a federal court in Maryland to do so, the administration announced in July it would rescind and replace parts of the 2012 program.

Advocates for DACA recipients say the changes will lead to gaps in work authorization, longer wait times, and doubled costs for participants.

CAUSES OF ACTION: Violations of the Fifth Amendment, the Administrative Procedure Act, the Federal Vacancies Reform Act, and the Homeland Security Act.

RELIEF: Class certification, determinations that acting DHS Secretary Wolf and the July 28 memo are unlawful, and any other relief the court deems appropriate.

ATTORNEYS: Attorneys with Make the Road New York, the National Immigration Law Center, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School represent the plaintiffs.

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com