Court Agrees with Attorney General James That Trump Administration’s Latest DACA Order Was Illegal

Trump Administration Has Defied Supreme Court Order by Refusing to
Restore DACA and Taking Orders by Unlawfully Appointed DHS Secretary

NEW YORK – New York Attorney General Letitia James today scored another major victory for hundreds of thousands of Dreamers across the nation who are eligible for Deferred Action for Childhood Arrivals (DACA) and who were at risk of deportation by the Trump Administration. A federal court today issued an order granting Attorney General James’ request for partial summary judgment, ruling that Chad Wolf, the agency official who in July 2020 purported to shut down new DACA applications and cut back the length of DACA renewals, was not lawfully serving as Acting Secretary of Homeland Security at the time.

After the U.S. Supreme Court ruled in June that the Trump Administration’s attempts to cancel DACA were unlawful, the program was supposed to resume. Instead, the U.S. Department of Homeland Security (DHS) announced that new DACA applications would not be granted and that the purported acting secretary of homeland security, Chad Wolf, had made other interim changes to DACA through a memorandum issued on July 28, while Wolf considered whether to fully rescind DACA. In August, Attorney General James co-led a coalition of 17 attorneys general in two filings against President Donald Trump, the DHS, the purported-Acting Secretary of Homeland Security Chad Wolf, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement, asking the court to vacate the Wolf memo as unlawful.

“The Supreme Court already ruled that President Trump’s attempts to unfairly punish Dreamers was unlawful, but now another federal court has ruled that this administration’s attempts to circumvent the courts in an effort to target and punish innocent young people is just as unlawful,” said Attorney General James. “Time and time again, this outgoing administration attempted to use young immigrants as political scapegoats. America is where these young people have gone to school, where they have worked, where they have paid taxes, where they have raised families, and where they have continued to be vital members of our communities. Our coalition will not hesitate to use every tool at our disposal to continue to protect these young people in every way possible. Si se puede!”

Dreamers are foreign-born young people who came to the United States at a young age and now identify as Americans. Most have no memory of or connection with the country where they were born, and many don’t speak any language other than English. Under immigration law before the DACA program, most of these young people had no protection against deportation, even though they had lived most their lives in the United States. Since 2012, more than 825,000 young people who were brought to this country at a young age were promised that if they came out of the shadows, they could legally work, study, serve in the military, and raise families in the United States without fear of arrest or deportation.

After President Trump ordered his administration to change the policy in 2017 and break the promises made to these Dreamers, a prolonged legal battle began in September 2017 that made its way through multiple courts before landing, in a combined case, at the U.S. Supreme Court. This past June, the Supreme Court ruled that the Trump Administration’s attempt to cancel the DACA program was arbitrary and capricious, in violation of the Administrative Procedure Act.

Despite the Supreme Court’s reinstatement of DACA, the late July memo by Wolf ordered DHS to reject all new initial DACA applications, to change the renewal period for current beneficiaries from two years to one year, and to reject all advance parole applications absent exceptional circumstances. The Wolf memo also purported to apply these changes retroactively to all applications submitted after the June 18 — the date of the Supreme Court decision.

The court’s order today found that the Wolf memo was invalid, explaining that Wolf has never lawfully served in the role of acting secretary of homeland security because his assumption of that role violated DHS’s order of succession. Wolf assumed the acting secretary position pursuant to a November 2019 revision to DHS’s succession order issued by then-Acting Secretary Kevin McAleenan. But McAleenan had no power to make that revision because he assumed the position unlawfully himself following then-Secretary Nielsen’s April 2019 resignation. DHS’s operative succession order at the time of Secretary Nielsen’s resignation unambiguously provided that the director of the Cybersecurity and Infrastructure Security Agency, not the commissioner of U.S. Customs and Border Protection (the position McAleenan was filling before he succeeded Nielsen), was to succeed the secretary in the event she resigned.

Joining Attorney General James in co-leading this effort was Massachusetts Attorney General Maura Healey and Washington Attorney General Bob Ferguson. The three were joined by the attorneys general of Colorado, Connecticut, Delaware, Hawai’i, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia.

This matter was handled by Deputy Solicitor General Anisha S. Dasgupta and Assistant Solicitor General Joshua M. Parker — both of the Division for Appeals and Opinions; Chief Counsel for Federal Initiatives Matthew Colangelo and Senior Trial Counsel Joseph Wardenski — both of the Executive Division; and Assistant Attorney General Sania Khan of the Civil Rights Bureau. The Civil Rights Bureau is a part of the Division for Social Justice. Both the Executive Division and the Division for Social Justice are overseen by First Deputy Attorney General Jennifer Levy.

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