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Acting DHS Secretary Lacked Authority In DACA Suspension, Judge Rules


A federal judge in New York has dealt another blow to the Trump administration's efforts to end DACA, Deferred Action For Childhood Arrivals. That's the program that protects immigrants who were brought to the U.S. illegally as children. The judge ruled yesterday that Acting Homeland Security Secretary Chad Wolf was not lawfully serving in that job when he suspended new applications for DACA. And that is once again raising the hopes of tens of thousands of young immigrants who are potentially eligible for the program. NPR's Joel Rose covers immigration, and he is with us now. Joel, welcome. Thanks for joining us.


MARTIN: So didn't the Supreme Court already weigh in on this?

ROSE: Well, the Supreme Court did rule in June when it blocked the Trump administration's effort to end DACA. And that was seen as a victory not only for the roughly 640,000 young immigrants who already have DACA protections, but also potentially for tens of thousands more who are eligible but have never had a chance to apply before the Trump administration moved to kill the program. A federal court in Maryland also said that the administration must start accepting new applications, but that did not happen. Instead, the acting Homeland Security secretary, Chad Wolf, issued a memo in July saying he had, quote, "serious policy concerns" about DACA and suspending new applications while he reconsidered its future.

MARTIN: So what does this latest court ruling say?

ROSE: Well, Judge Nicholas Garaufis found that Wolf was not lawfully appointed to the job of acting secretary of Homeland Security. Basically, the DHS did not follow its own rules of succession. And this is not the first judge to reach a similar conclusion. In addition, the Government Accountability Office said back in August that both Wolf and his No. 2 at DHS were improperly appointed. And so this is creating potentially serious legal vulnerabilities for the policies that they have enacted, including now this DACA memo.

MARTIN: So the big question then becomes, what does this mean for DACA recipients?

ROSE: Well, lawyers for the DACA recipients and the would-be DACA recipients in this case are definitely claiming victory. Earlier today, I talked to Marielena Hincapie, the director of the National Immigration Law Center, which has been one of the leading groups in the fight to defend DACA.

MARIELENA HINCAPIE: This decision, coupled with the historic victory of President-elect Biden, means that young immigrants can now breathe a sigh of relief. And they can focus once again on rebuilding their lives with their loved ones here in the country where they belong. Like, this is their home.

MARTIN: Has the Trump administration responded, and if so, what have they had to say?

ROSE: Well, in this case and in others, the administration has argued that Wolf was lawfully appointed. So I think it's likely that there will be an appeal even if they ultimately lose on appeal, though it's hard to see the administration rushing to begin accepting new DACA applications. More likely, we could see young immigrants who want to apply will have to wait until the Biden administration takes office next year. It's expected to reinstate DACA in full as soon as he takes office, possibly even on Day 1.

MARTIN: And before we let you go, Joel, why has the Trump administration rely so heavily on acting appointees like Chad Wolf? They've been warned repeatedly that this is not an appropriate practice, and now judges are saying that it's actually illegal.

ROSE: Well, President Trump has said that he likes acting appointments because it gives him more flexibility. Critics say the administration, though, has openly flouted the Federal Vacancies Reform Act and other succession rules in order to appoint people who would have had a difficult time getting confirmed by the Senate. There did not seem to be that much of a penalty for this practice until now, but we may be seeing that this strategy maybe does have some long-term drawbacks after all.

MARTIN: That is NPR's Joel Rose. Joel, thank you.

ROSE: You're welcome. Transcript provided by NPR, Copyright NPR.

Joel Rose is a correspondent on NPR's National Desk. He covers immigration and breaking news.