Chad Wolf: Judge Rules Serving Unlawfully as DHS Secretary, Lacked Authority to Impose Asylum Restrictions

Chad Wolf, acting Secretary of Homeland Security, appears before the Senate Homeland Security and Governmental Affairs Committee in Washington D.C., August 6, 2020. (Toni Sandys/Reuters)

A federal judge in Maryland on Friday blocked the Trump administration from enforcing two new asylum restrictions and ruled that Chad Wolf’s role as acting secretary of the Department of Homeland Security is likely unlawful.

“In sum, the Court concludes that Plaintiffs are likely to demonstrate (former acting Homeland Security Secretary Kevin) McAleenan’s appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary,” Judge Paula Xinis’ ruling said.

Xinis also wrote that “by extension, because Wolf filled the role of Acting Secretary without authority, he promulgated the challenged rules also ‘in excess of…authority,’ and not ‘in accordance with the law.’”

The judge’s finding came as a result of a case over two asylum rules that a coalition of 20 state attorneys general and ten cities and counties have challenged in court. Xinis ruled to temporarily block the rules, which the attorneys generals said limited access to employment authorization for asylum seekers, while the lawsuit is heard. 

One rule would require asylum seekers to wait one year before applying for employment authorization, while the other would eliminate requirements that employment authorization applications be processed within 30 days, according to the New York State Attorney General’s office. 

Xinis found that DHS “completely sidestepped this critical impact of the new rules” and “never wrestled with the fundamental implications of deferring or denying advance work authorization.”

The order grants injunctive relief from the rules that went into place in August only to members of two of the lawsuit’s plaintiffs, Casa de Maryland and Asylum Seeker Advocacy Project, that the judge found to have “demonstrated associational standing at this stage,” finding the relief “both proper and necessary to avoid irreparable harm.”

The organizations have approximately 100,000 and 4,000 members each, according to the judge’s order.

“Not only is this decision welcome news for asylum seekers who were unfairly targeted by the Trump Administration, but the courts have now found that Chad Wolf has no authority at the Department of Homeland Security,” New York State attorney general Letitia James said in a statement Monday. 

“Every decision Mr. Wolf has made — from trying to punish Dreamers to targeting New Yorkers with an unlawful Trusted Traveler suspension, and everything in between — has been perpetrated by a man with no authority and no business sitting in the chair of the acting secretary of Homeland Security,” she added. “The Trump Administration’s continued efforts to violate the law and impose draconian orders through lapdog appointees should be immediately stopped and all decisions already executed should be immediately vacated.”

The ruling comes weeks after President Trump announced in a tweet that he would appoint Wolf, who has been the acting secretary since November 2019, to the role on a permanent basis. Wolf’s nomination was formally sent to the Senate last week.

The department’s last confirmed secretary, Kirstjen Nielsen, was forced to resign in April 2019, leaving the department without a confirmed secretary for over a year. 

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