Posted on November 18, 2020

Judge Rules Acting Homeland Security Secretary Appointment Unlawful

Maria Sacchetti, Washington Post, November 15, 2020

A federal judge in New York has ruled that acting homeland security secretary Chad Wolf lacked the authority to limit the work permits of hundreds of thousands of undocumented immigrants who came to the United States as children because his appointment to the top position in the department did not appear to be lawful.

U.S. District Judge Nicholas G. Garaufis — one of the first judges to block President Trump from phasing out the work permits the government issues via the Deferred Action for Childhood Arrivals program, or DACA — said in an unusual Saturday ruling that the “plain text” of the department’s order of succession showed that Wolf’s ascension to acting secretary did not follow established law and was part of several hastily crafted administration moves designed to get people into the top DHS position outside of standard procedures.

As a result, Garaufis said, Wolf’s memo in July limiting the validity of the DACA permits from two years to one year “was not an exercise of legal authority.”

Garaufis’s ruling adds to the complex legal battles surrounding the Obama-era DACA program, which was designed to give those who arrived in the United States as minors a way to stay in the country. More than 640,000 immigrants known as “dreamers” currently rely on the program to live and work in the United States.

The practical effect of the judge’s decision was not immediately clear because he did not explicitly order DHS to restore the original version of DACA and has asked both sides to schedule a conference on the matter.

Several related lawsuits also are pending, setting up a potential conflict among courts. One key lawsuit, in Texas, is considering the legality of the program, and a hearing in that case is scheduled for December.


The Department of Homeland Security has argued that Wolf was serving lawfully when he issued the DACA memo in July, according to the court.

DHS criticized Garaufis’s ruling Sunday as “another example of an activist judge substituting his own policy preference for those of the Trump Administration” and accused him of having an “unwillingness to seriously engage on the facts or the law.”

“DHS is exploring its options to ensure its review of DACA continues as intended,” the spokesperson, who was not identified, said in an email.


The U.S. Supreme Court blocked Trump from ending the Obama-era program in June, saying the government had failed to provide the required legal justification for the move, and justices ordered DHS to consider next steps. Immigrants had hoped DHS would restore the original program and reopen it to new applicants who had not been allowed to apply since 2017.

Instead, Wolf issued the July memo shortening the validity of the work permits. Wolf has said that DACA “presents serious policy concerns” that might warrant its termination, but he has not made a final decision about the program’s future.

The memo prompted lawyers to ask Garaufis to intervene. They argued that Wolf’s appointment was unlawful, and, by extension, so was his July memo.