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Judge says acting DHS secretary appointment unlawful, invalidates DACA suspension

A federal judge ruled on Saturday that acting Department of Homeland Security (DHS) Secretary Chad WolfChad WolfLawmakers slam DHS watchdog following report calling for 'multi-year transformation' Intel heads to resume worldwide threats hearing scrapped under Trump Sunday shows preview: Democrats eye passage of infrastructure bill; health experts warn of fourth coronavirus wave MORE was unlawfully appointed, thus invalidating his suspension of the Deferred Action for Childhood Arrivals (DACA) program. 

NBC News reported that Judge Nicholas Garaufis ruled that "Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA [Homeland Security Act] when he issued the Wolf Memorandum" suspending the Obama-era program.

Wolf issued a memorandum in July of this year in which he said the department would not accept new DACA requests while a review of the program was ongoing, NBC noted. The memo came after the Supreme Court ruled in June that the administration failed to give adequate justification for terminating the program. 

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Wolf was appointed to serve as acting director of DHS in November 2019, taking over the post from Kevin McAleenan, who had been leading Customs and Border Protection. Wolf was formally nominated to the role in August, but the Senate has yet to confirm him. 

The Government Accountability Office found in August that McAleenan had not been designated in the order of succession to replace former Homeland Security Secretary Kirstjen NielsenKirstjen Michele NielsenLeft-leaning group to track which companies hire former top Trump aides Rosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' House Republican condemns anti-Trump celebrities during impeachment hearing MORE and therefore could not legally alter the order of succession at DHS.

"Based on the plain text of the operative order of succession, neither Mr. McAleenan nor, in turn, Mr. Wolf, possessed statutory authority to serve as Acting Secretary. Therefore the Wolf Memorandum was not an exercise of legal authority," Garaufis wrote, according to NBC.

The suit is part of an ongoing case against DHS, which originally challenged Texas’s attempt to end the program, according to NBC. 

Karen Tumlin, director of the Los Angeles-based Justice Action Center, told the news outlet that the ruling means "the effort in the Wolf memo to gut the DACA program is overturned."

She added that the ruling applies to over one million people. 

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"This is really a hopeful day for a lot of young people across the country," Tumlin said.

In a statement to The Hill, a DHS spokesperson said the ruling is “another example of an activist judge substituting his own policy preference for those of the Trump Administration.”

"His reasoning has already been thoroughly discredited, and his unwillingness to seriously engage on the facts or the law is disappointing. DHS is exploring its options to ensure its review of DACA continues as intended," the spokesperson said.

The Hill has reached out to the White House for comment.

Updated at 4:25 p.m. Sunday.