AG Mark Herring Joins Coalition to Block Trump Admin. Attempts to Defy Courts and Refusal To Restore DACA

In a motion for partial summary judgment filed today against President Donald Trump, DHS, the purported-Acting Secretary of Homeland Security Chad Wolf, U.S. Citizenship and Immigration Services, and U.S. Immigration and Customs Enforcement, the coalition amends the initial September 2017 complaint on DACA and asks the court to immediately vacate the Wolf memo on the ground that it is, like the initial Trump Administration policy to rescind DACA, unlawful. Additionally, Attorney General Herring and his colleagues argue that it should never have been carried out since Wolf is not lawfully serving in the role as acting secretary of Homeland Security.

“DREAMers play an integral role in Virginia’s communities, at our colleges and universities, and they have added billions of dollars to our economy,” said Attorney General Herring. “This country is the only home most of these talented young people have ever known and we cannot allow the Trump Administration to continue to try and rip them away from their lives here. DREAMers deserve to live, work, and raise a family in the Commonwealth as much as any other Virginian.

“With this most recent memo, the Trump Administration is blatantly and illegally defying the Supreme Court’s ruling from only a few months ago. I will never stop fighting to protect DREAMers and ensure that they are able to stay in Virginia, making it a more vibrant, stronger, better place.”

DREAMers are foreign-born young people who were brought to the United States at a young age and now identify themselves as Americans. Most have no memory of or connection with the country where they were born, and many don’t speak any language other than English. Under immigration law before the DACA program, most of these young people had no way to gain legal residency in the United States, even though they had lived most their lives in the U.S. Since 2012, under the Obama Administration, more than 825,000 young people, who were brought to this country at a young age, were promised that if they came out of the shadows, they could legally work, study, serve in the military, and raise families in the United States without fear of arrest or deportation.

DACA also provides immense societal benefits, with DREAMers working a variety of critical job functions including teachers, healthcare workers, IT specialists, among numerous other professions. DACA recipients also provide vital financial support to their families, and to enhance the economies of their local communities — contributing approximately $8.7 billion each year in federal, state, and local taxes across the country. In Virginia alone, DACA recipients contribute more than $711 million annually to the state’s economy. Additionally, many DREAMers are also fighting for their communities in the battle against the coronavirus disease 2019 (COVID-19) public health crisis as essential workers More than 9,200 DREAMers are serving their communities on the frontlines in health care, education, and food-related jobs alone.

Despite multiple courts ruling against the Trump Administration, the late July memo by Wolf specifically orders DHS to reject all new initial DACA applications, to change the renewal period for current beneficiaries from two years to one year, and to reject all advance parole applications absent exceptional circumstances. The Wolf memo also purports to apply these changes retroactively to all applications submitted after the June 18, 2020 — the date of the Supreme Court decision.

In today’s motion — filed in the U.S. District Court for the Eastern District of New York, Attorney General Herring and his colleagues argue that these orders, especially the order to reject new applications, directly go against both the Supreme Court and the Fourth Circuit’s earlier orders that found DHS’s efforts to rescind DACA as unlawful.

Further, the coalition argues that court should hold the Wolf memo invalid and vacate the changes it effected to DACA for the same reasons the U.S. Government Accountability Office (GAO) concluded earlier this month when it said Wolf has never lawfully served in the role of acting secretary of Homeland Security because his assumption of that role violated two federal acts related to the succession of power. Wolf assumed the acting secretary position pursuant to a November 2019 revision to DHS’s succession order issued by then-Acting Secretary Kevin McAleenan. But McAleenan had no power to make that revision because he assumed the position unlawfully himself following then-Secretary Nielsen’s April 2019 resignation. DHS’s operative succession order at the time of Secretary Nielsen’s resignation unambiguously provided that the director of the Cybersecurity and Infrastructure Security Agency, not the commissioner of U.S. Customs and Border Protection (the position McAleenan was filling before he succeeded Nielsen), was to succeed the secretary in the event she resigned. With the GAO’s finding a few weeks ago, the coalition today makes clear that Wolf did not have the authority to issue the June memo, and continues to have none today — placing DHS’s current policies in direct violation of both the Supreme Court and Fourth Circuit orders from June.

The coalition specifically argues that DHS’s new memo related to DACA once again violates the Administrative Procedure Act and that its issuance by Chad Wolf is a violation of both the Federal Vacancies Reform Act and the Homeland Security Act, since he has never lawfully served as acting secretary of Homeland Security. The coalition seeks to have the July 28 memo vacated and for the DACA program restored to where it stood before the September 2017 rescission, as the Supreme Court ordered in June.

Protecting DREAMers and the DACA program have been a top priority for Attorney General Herring. In 2017, his colleagues and he filed a lawsuit in the U.S. District Court for the Eastern District of New York challenging the Trump Administration’s decision to terminate DACA. In February 2018, the coalition was successful in securing a nationwide preliminary injunction that halted DACA’s termination. Additionally, last September, the coalition filed a brief with the U.S. Supreme Court in their lawsuit to protect DACA.

This year, Attorney General Herring’s legislation passed clarifying that any student is eligible for in-state tuition, regardless of citizenship status. In 2014, he made DREAMers eligible for instate tuition at Virginia colleges and universities.

Joining Attorney General Herring in today’s filing are the attorneys general of Colorado, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Massachusetts, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.