Secretary’s Illegal Appointment Gives DACA Challenge New Edge

Deferred Action for Childhood Arrivals recipients listen to speakers in Phoenix during a June 18 news conference in front of the U.S. Immigration and Customs Enforcement building after the U.S. Supreme Court ruled on the DACA program. (AP Photo/Ross D. Franklin)

WASHINGTON (CN) — After Supreme Court defeat forced the Trump administration to retool curbs on an immigration program, a new lawsuit says the latest effort is also void because its source is holding office illegitimately.

The dizzying spin of litigation stems from an Obama-era program called Deferred Action for Childhood Arrivals that limited the government’s ability to deport certain qualifying immigrants who entered the country illegally as children.

President Donald Trump attempted to dismantle DACA shortly after taking office, but the Supreme Court found the move arbitrary and capricious in a fractured June ruling.

Just a month later, acting Secretary of Homeland Security Chad Wolf targeted the program again — saying new DACA applicants would not be accepted and current DACA recipients would need to renew their permits annually, instead of every two years.

But Wolf’s own authority would soon come into question as the nonpartisan Government Accountability Office concluded that the Trump administration’s shuffling of Homeland Security department heads last year trampled the rules of succession.

President Donald Trump said last month that he plans to formally nominate Wolf, thereby legitimizing the secretary, but a federal complaint filed Thursday says such relief is too little, too late to save Wolf’s memo on DACA.

“To date, Defendant Wolf has not been nominated by the President by the President or confirmed by the Senate to the office of Secretary of Homeland Security,” the complaint states. 

The Santa Fe Dreamers Project, the lead plaintiff in the case, said in the weeks following the Aug. 28 memo’s release their staff spent at least 30 additional hours a week fielding calls from clients with DACA-renewal applications. 

They asserted that if Wolf’s directives are allowed to stand, the surge won’t let up.

“By reducing the length of DACA renewals from two years to one year, the Wolf Memorandum will force Plaintiffs to double the resources they expend assisting DACA recipients with renewing their participation in the initiative,” the complaint states.  

In a bid to establish standing, the groups note that their focus on DACA means that fewer resources are available to their non-DACA clients, including asylum seekers and victims of abuse and human trafficking.

Three nonprofits providing pro bono legal services to DACA recipients, or so-called Dreamers, filed the complaint in Washington.

The 42-page complaint states the “new and draconian restrictions on DACA” should be overturned because the top-ranking official “lacked statutory authority to issue the Memorandum, rendering it ultra vires, without force or effect, and void.”

Urging the court to take action, the complaint quotes President Barack Obama in arguing the importance of upholding DACA protection: “These Dreamers are Americans in their hearts, in their minds, in every single way but one: on paper.”

The Department of Homeland Security did not respond to a request for comment on the complaint Thursday afternoon.

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