Published: September 1, 2021
Last November 14, 2020, District Court for the Eastern District of New York declared that then-appointee Chad Wolf did not have the authority to be DHS Acting Secretary.
Homeland Security Act (HSA) provides 2 succession orders in case of DHS Secretary vacancy. First, if the vacancy was caused by death, sickness or resignation, the Deputy Secretary would take over, to be followed by Undersecretary for Management and then FEMA Administrator. Second, if the vacancy was caused by unavailability due to disaster or emergency, the order would be the same as the first.
Before then-Secretary Nielsen resigned, she amended the line of succession for the second cause of vacancy. From then, if the vacancy was caused by unavailability, CBP Commissioner would be third in line. With both the first and second successors vacant, then CBP-Commissioner McAleenan assume the role of Acting Secretary. McAleenan further amended the succession in cases of unavailability to put Undersecretary for Strategy, Policy, and Plans fourth in line after CBP Commissioner. McAleenan resigned. Because of this, then-Undersecretary for Strategy, Policy, and Plans Wolf became Acting Secretary.
Wolf, on July 28, 2020 issued a Memorandum that mandated the rejection of all initial requests for DACA. Two cases challenged this Memorandum in court citing Wolf’s lack of authority. District Court of New York heard both cases and ruled that the Memorandum was issued without authority.
Citing the HSA, the court ruled that even with the amendments enacted by previous Acting Secretaries, Wolf’s eventual appointment was invalid. The original vacancy was caused by resignation. The order of succession should have been the first set namely with the FEMA Administrator third in line, not the CBP Commissioner. McAleenan’s stint as Acting Secretary did not follow the succession order. Thus, Wolf’s later assumption to office was likewise bereft of legal basis.
As a result, the memorandum suspending DACA issued by Wolf is voided for being issued for lack of authority.
For more information regarding DACA and/or other immigration issues, contact ALG Lawyers at (213) 384-3300 or visit our website. We will gladly schedule you for a consultation with our expert immigration attorneys in Los Angeles and answer any questions you may have about your immigration options.
(Please note that this article does not create an Attorney-Client relationship between our law firm and the reader and is provided for informational purposes only. Information in this article does not apply to all readers. Readers should not rely on this information as legal advice and should seek specific counsel from a qualified attorney based on their individual circumstances. Thank you.)