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Some undocumented immigrants should again be allowed to apply for DACA protections, federal judge rules 

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EL PASO — Tens of thousands of undocumented immigrants in Texas could be eligible for protections offered under the Deferred Action for Childhood Arrivals program after a federal judge ordered Friday the program must revert to its 2017 status.

U.S. District Judge Nicholas G. Garaufis ordered that the Department of Homeland Security must post a public notice stating the department will again process applications for the program for potential first-time enrollees.

The 2012 program was open to undocumented immigrants who came to the country before they were 16 and who were 30 or younger as of June 2012. As of March, about 106,000 DACA recipients lived in Texas, and another 86,000 were potentially eligible to apply, according to the Migration Policy Institute.

Friday’s order follows last month’s ruling that acting DHS Secretary Chad Wolf wasn’t appointed to the position according to DHS guidelines, rendering a July memo issued on the DACA program invalid. In that memo, DACA protections, which also include a renewable two-year work permit, were slashed to one year. He also excluded new applicants from applying. That came despite the U.S. Supreme Court ruling in June that the administration didn’t properly halt the program when it announced it was phasing it out more than three years ago.

But in his November ruling, Garaufis said Wolf’s succession didn’t follow proper procedure after former secretary Kevin McAleenan left the post in October 2019.

“DHS failed to follow the order of succession as it was lawfully designated,” Garaufis wrote. “Therefore, the actions taken by purported Acting Secretaries, who were not properly in their roles according to the lawful order of succession, were taken without legal authority.”

The issue of Wolf’s actions at the helm of the DHS was the subject of an August report by the Government Accountability Office, a federal watchdog, that concluded Wolf and Ken Cuccinelli, a senior official performing deputy secretary duties, were appointed as a result of “reference to an invalid order of succession.”

The order Friday was greeted with cheers from the immigrant rights community.

“Thousands of young people who should have been eligible for deportation protection and work authorization have been waiting for over three years to access this life-changing program and live with peace of mind in the country they call home,” Todd Schulte, the president of FWD.us, said in a statement. “It is well past time for DHS to finally follow the repeated judicial orders and begin to accept these applications.”

The case before Garaufis, which is in New York state, isn’t the only DACA litigation still active. Texas Attorney General Ken Paxton is still pursuing a case in the Southern District of Texas in his effort to halt the program. A timeline on when that could be resolved is unclear.

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