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Trump administration again moves to dismantle DACA

Despite federal court order, DHS Sec. Chad Wolf announces new rollback

The Trump administration moved Tuesday to roll back Deferred Action for Childhood Arrivals, an Obama-era program that currently protects about 644,000 'Dreamers' from deportation, in a move that flouts a federal court order that required new applications to be accepted.

On Tuesday, Acting Secretary of Homeland Security Chad Wolf announced that DHS would not process new applications for the program pending what he called a "comprehensive review" of the program. Among the changes, DHS will not accept any new applications for deferred action under DACA, and renewals for deferred action and accompanying work authorization will be granted for one year, rather than two years. 

Also, applications that allow DACA recipients to travel outside of the United States, under what the the agency calls "advanced parole," will be granted "only in exceptional circumstances," Wolf said 

"I have concluded that the DACA policy, at a minimum, presents serious policy concerns that may warrant its full rescission," Wolf wrote in a memo to the two acting heads of U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement, as well as the deputy director of policy at U.S. Citizenship and Immigration Services. 

Eliminating DACA has been a long-term goal of the administration going back to the earliest days of President Donald Trump's campaign, and in September 2017, former Attorney General Jeff Sessions announced that the program would end, arguing that DACA was an "open-ended circumvention of immigration laws."

Following Sessions' announcement, advocates filed five separate lawsuits, including one led by former Homeland Security Secretary Janet Napolitano, an ex-governor of Arizona who now serves as the president of the University of California. These were consolidated together under Department of Homeland Security v. Regents of the University of California and moved through the courts. 

On June 18, the U.S. Supreme Court ruled in a 5-4 decision that Trump administration officials violated the law by rescinding DACA. 

Led by Chief Justice John Roberts, and joined by Justices Ruth Bader Ginsberg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, the court ruled that the 2017 decision to end DACA was "arbitrary and capricious," and that when former DHS Secretary Elaine Duke—who replaced John Kelly who became the White House Chief of Staff—rescinded DACA, she violated the Administrative Procedure Act. 

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Wolf said that he was rescinding two Trump-era moves to restrict the program and "making certain immediate changes to the DACA policy to facilitate my thorough consideration of how to address DACA in light of the Supreme Court’s decision." 

Following the Supreme Court's decision, a federal judge in Maryland agreed with the court that the end of DACA was "arbitrary and capricious," and in violation of federal law. In his order,  issued on July 17, U.S. District Judge Paul S. Grimm ordered the administration to restore DACA to its "pre-September 2017 status," and blocked the administration from "implementing or enforcing the DACA rescission and from taking any other action to rescind DACA that is not in compliance with applicable law." 

A DHS official told reporters during a phone that DHS justified the memo, by claiming that the move was an "intervening action" which makes Grimm's decision moot, NPR reported. However, that argument is likely to face its own legal challenge. 

About 35,000 "Dreamers" are protected by DACA in Arizona, and vverall about 1.3 million people are eligible for protections under DACA from about 30 different countries, according to the Migrant Policy Institute.

Among the 700,000 DACA recipients are about 81,000 "Dreamers" who are LGBTQ,  a report from the Williams Institute at UCLA's School of Law said. "Undocumented LGBT young adults are a particularly vulnerable population," said the study's lead author Kerith J. Conron, the Blachford-Cooper Distinguished Scholar and Research Director at the Williams Institute. "DACA helps many of them to get an education, find employment, and support themselves and their families while contributing to the U.S. economy."

Advocates and lawyers criticize Wolf's memo as 'cruel' 

"The Trump administration is consciously choosing to needlessly throw Dreamers’ lives into turmoil with this decision. The Supreme Court did not require DHS to end DACA, yet DHS is insisting on limiting protections for thousands of Dreamers and barring thousands more from obtaining protection from removal at all," said Jennifer Minear, President of the American Immigration Lawyers Association. "Make no mistake: this is the Administration’s next step towards deporting Dreamers from the only country they have ever called home." 

"It feels cruel that only weeks after the U.S Supreme Court affirmed legal protections for DACA recipients, DHS is attempting to curtail those same protections," said Irene Oria, president of the Hispanic National Bar Association. "Despite the Supreme Court’s decision in June and a subsequent federal court’s order restoring full DACA protections to current and potential beneficiaries, DHS continues to jeopardize young immigrants and their families by re-injecting uncertainty around their immigration status, once again leaving them vulnerable to deportation." 

Beth Werlin, the executive director of the American Immigration Council said that the decision "gut" DACA was "made unilaterally by President Trump and his administration." The Supreme Court decision does not require the administration to "disrupt" the lives of those living under DACA's protections "in the middle of a worldwide pandemic." 

"Like the rescission memos that came before it, this memo provides no good rationale for stopping DACA while it reevaluates the program, leaving thousands of young people in a cruel state of limbo," she wrote. "The president is setting the stage to end DACA in the coming months. This would throw the lives of Dreamers — who are already experiencing profound uncertainty due to COVID-19—into chaos. The administration’s narrowing of the program will disqualify some DACA recipients who have participated in the program for years. Some Dreamers will be forced into unemployment, including some who are on the front lines of our fight against the coronavirus," Werlin wrote. 

As Roberto G. Gonzalez, a professor with Harvard's graduate school for education, wrote on Twitter, "Reducing DACA protections from 2 years to 1 will result in a perpetual cycle of limbo and a steep financial burden. It will hurt DACA beneficiaries, their families, and their employers." 

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Along with broadsides, many called on Congress to act and pass the American Dream and Promise Act. 

"For the sake of not only Dreamers but our nation, this legal limbo must end," said Benjamin Johnson, AILA's executive director. "It is time for decisive, compassionate action by Congress to pass the  and ensure their lives are permanently woven into the fabric of this nation. AILA and its more than 15,000 members are ready to roll up our sleeves and work together on effective, bipartisan legislation that will quickly address this issue. Now, and always, AILA stands with Dreamers," Johnson said. 

Oria agreed, calling for the president and Senate take up H.R. 6, the American Dream and Promise Act for a vote and "give DACA recipients and other hard-working immigrants the opportunity to obtain permanent legal status and, in doing so, give their families the peace of mind they have earned.”

"We are in a moment in history where we should be working to create stability in all communities across the United States. The president should be focused on containing the spread of COVID-19, ensuring everyone’s health and safety, and providing appropriate relief for those in need," Werlin wrote. "He should be working with Congress to create a permanent solution for the thousands of Dreamers across the United States. who want nothing more than to be able to build their lives and provide for their families without the constant threat of deportation. It’s clear that the administration is not looking out for the well-being of Dreamers, whose lives are on the line. The urgency lies with Congress to pass a permanent solution."

Wolf's tenure may be illegal

Moreover, Wolf's changes to DACA may not be legal because the Trump administration has violated the Federal Vacancies Reform Act. Passed in 1998, the law restricts acting officers from serving in a vacated position for 210 days. 

As University of Michigan law professor Nina Mendelson, an expert on federal vacancies, told the Washington Post, that 210-day window was "violated even before Wolf was appointed, given that McAleenan served more than 210 days himself as acting secretary."

"The language of the Federal Vacancies Reform Act is very clear,” Mendelson said. “It’s 210 days, beginning on the date the vacancy occurs, so an acting secretary cannot serve legally past that time."

Wolf was tapped for the position on November 13, 2019 and has served 259 days, after replacing Kevin McAleenan.McAleenan was promoted to the position after Kirstjen Nielsen was ousted in April 2019. Nielsen was the the last Congressionally-confirmed secretary for DHS. 

Following Wolf's appointment, Congressional Democrats wrote a letter expressing "serious concerns" with the appointment of Wolf, and Ken Cuccinelli, who is currently holding two positions—serving as the "Senior Official Performing the Duties of the Deputy Secretary" and as the "Senior Official Performing the Duties of the Director at U.S. Citizenship and Immigration Services." 

Adding to confusion at DHS, in Wolf's letter, Matthew Albence is tapped as the "Senior Official Performing the Duties of the Director at U.S. Citizenship and Immigration Services" while DHS's own leadership page continues to show Cuccinelli, the former attorney general of Virginia, as the "senior official" at CIS. 

As the House Oversight committee two leaders—U.S. Reps. Bennie Thompson and Carolyn Maloney—put it in a November letter "recently released documents suggest" that Wolf's appointment "may violate the law" because McAleenan "may not have been lawfully serving as Acting Secretary." 

"If so, numerous actions taken by both Mr. McAleenan and Mr. Wolf may be invalid," the committee wrote. "This designation is the latest attempt to install Mr. Cuccinelli in a senior leadership position at the Department of Homeland Security when the administration knows that the Senate would not confirm him to that—or any other—position." 

The committee called the Trump administration's maneuvers with the two men "part of a troubling pattern of legal contortions, as well as an end-run around the Senate's constitutional Advice and Consent power. "This administration has hollowed out Department leadership, with frequent leadership turnover and abuse of the authority to appoint temporary officials," the committee members wrote. 

Along with the cabinet-level position, much of DHS's leadership is either vacant, or filled by people who have not been confirmed by Congress. Among the 75 leadership positions at DHS, eight are considered vacant, and another nine are filled by someone in an acting position, including Wolf and Cuccinelli. 

In March, a federal judge agreed that Cuccinelli was illegally appointed. 

In a 55-page decision, U.S. District Judge Randolph Moss in Washington D.C. ruled that the administration violated the federal vacancies act, undoing policies that Cuccinelli intended to implement against asylum seekers. 

Federal watchdogs at Government Accountability Office are required to investigate violations of FVRA, however, the agency has only published letters describing eight violations under the Trump administration. Under the Obama administration, the GAO issued letters six times, and 11 times during the Bush administration. 

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Hundreds push for Deferred Action for Childhood Arrivals, an Obama-era program that protected people who were brought to the U.S. as children from deportation for two years and gave them a work visa. DACA was ended by the Trump administration in 2017, however, legal challenges have kept the program alive.

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