A group of young undocumented immigrants asked a federal court in New York on Friday to block the Trump administration’s efforts to scale back the Deferred Action for Childhood Arrivals (DACA) program after the Supreme Court ruled its attempt to end the Obama-era policy was unlawful.
Following the high court ruling, the administration closed DACA to first-time applicants and limited the protections from deportation afforded to more than 640,000 current beneficiaries. The lawsuit filed in the U.S. District Court in Brooklyn is the first legal challenge against changes the Department of Homeland Security (DHS) made to DACA in July.
The group’s complaint amends one of the main court cases that initially challenged the 2017 effort to end DACA. It argues that Acting Homeland Security Secretary Chad Wolf’s memo on DACA and the U.S. Citizenship and Immigration Services guidance that ratified it are “arbitrary and capricious” and violate federal administrative law governing policy changes by the executive branch.
The immigrants’ complaint was filed by the National Immigrant Law Center, Make the Road New York and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School.
Legal experts said the high court’s decision, as well as subsequent lower court orders, would require DHS to fully restore DACA, including by opening it to initial applicants for the first time since September 2017. But for more than a month after the Supreme Court order, the administration did not make any announcements on how it would comply.
On July 28, 41 days after the Supreme Court ruling, Acting Homeland Security Secretary Chad Wolf announced he was rescinding two memos signed by his predecessors, Kirstjen Nielsen and Elaine Duke, that called for DACA’s termination. But Wolf then issued his memo making it clear that DACA would remain closed to new applicants indefinitely and that those enrolled in the program would only be able to apply for one-year protections from deportation and work permits — instead of the two-year period that has been in place since 2012.
The memo also raised the threshold for DACA recipients to qualify for “advance parole,” which generally allows them to temporarily leave the U.S. and return, saying the relief would only be granted “for urgent humanitarian reasons or significant public benefit.”
Wolf’s changes and the USCIS guidance, publicly disclosed earlier this week, tens of thousands of potential applicants who qualify for DACA on paper, including an estimated 66,000 immigrant teens 15 years of age or older, who have become eligible for the program since 2017.
Ximena Zamaro, a college-bound 18-year-old in Queens, is one of them. The undocumented teenager had gathered all her documents to apply for DACA in the wake of the Supreme Court’s order. It was a familiar scenario. In 2017, after she turned 15, the minimum age requirement for DACA, Zamaro also prepared an application. But as she was set to submit it, the Trump administration announced DACA would wind down.
In July, after the Wolf memo was issued, Zamaro grew frustrated. “I was more angry and upset this time just because it had already happened when I was 15,” she told CBS News. “Although it did affect me at that time, it was still something I could go around … because I was so young. But when it happened when I was 18, it was very frustrating.”
Like her older sister, a DACA recipient, Zamora meets all the requirements of the Obama-era policy. She arrived in the U.S. in 2005 as a two-year-old child. She does not have legal status. She attended and graduated from a U.S. high school, and she has no criminal charges or convictions. But because she has never had DACA status before, her application would be rejected under the new guidelines.
Zamora, one of the new plaintiffs in Friday’s amended lawsuit, said DACA would allow her to get a job and help with her family’s finances. It would also give her peace of mind. “It would bring some sense of comfort, because when I’m traveling I won’t have to be uneasy about being stopped,” she said. “It would feel good to know that you are not being targeted or at risk of being deported.”
In his July memo, Wolf said closing DACA to new applicants like Zamora was justified because they lacked the “reliance interests” of current beneficiaries. He acknowledged letters from organizations, schools and local governments that described how immigrants enrolled in DACA have “structured their lives” around the program, contributed to the U.S. economy, assisted efforts to fight the coronavirus and used their protections from deportation to help their families, communities and employers. But Wolf said this was not the case for immigrants without DACA.
“Whatever the merits of these asserted reliance interests on the maintenance of the DACA policy, they are significantly lessened, if not entirely lacking, with regard to aliens who have never before received deferred action pursuant to the policy,” he wrote.
Zamora disagrees. “A lot of the youth came here at a young age. The United States is what they call home, its where they grew up, its where they learned everything,” she said. “Taking that away from them, it kind of steals their identity.”
The groups also argued that Wolf did not have the authority to issue the memo because he was unlawfully occupying his office under the requirements of the Homeland Security Act of 2002 and the Federal Vacancies Reform Act. Earlier in the month, the Government Accountability Office, Congress’ investigative arm, found that Wolf and his deputy, Ken Cuccinelli, had been invalidly appointed to their current roles at the helm of DHS — a finding that was strongly rejected by the Trump administration.
The lawsuit on Friday is the second in two weeks in which groups have asked federal courts to declare Wolf’s appointment unlawful and to void the policies he has authorized. On Thursday, President Trump formally nominated Wolf to be the permanent DHS secretary.
“This Wolf memo is just the latest assault on DACA, and it is no less unlawful than the first attempt,” said Marielena Hincapié, the executive director of the National Immigration Law Center.