Federal Judge Rules Chad Wolf Likely Serving as DHS Head Unlawfully, Blocks Some Asylum Restrictions

September 15, 2020 Updated: September 15, 2020

A federal judge has blocked the Trump administration from temporarily enforcing two new rules seeking to limit asylum seekers’ ability to obtain work permits and ruled that acting Department of Homeland Security (DHS) Secretary Chad Wolf is likely serving his role unlawfully.

District Court Judge Paula Xinis from Maryland on Friday ruled in favor of five immigrant advocacy groups, granting their request for a preliminary injunction that blocks the administration from enforcing some of its asylum restrictions against members of immigrant organizations Casa de Maryland (CASA) and Asylum Seeker Advocacy Project (ASAP) while their case plays out in court.

The ruling would provide relief to thousands of asylum seeker members of the two organizations seeking to obtain work permits, known as an employment authorization document. CASA has over 100,000 members, meanwhile ASAP has about 4,000 members, according to the judge.

As part of her ruling, Xinis also held that Wolf had promulgated the rules without authority because he was likely serving in his role as the head of DHS unlawfully.

“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,” Xinis wrote (pdf). “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 case is focused on two asylum rules that went into effect in August. One of the rules eliminated requirements that the application for a work permit had to be processed within 30 days. The judge says this would give the agency “unfettered time to determine whether to grant the asylum applicant” a permit.

Meanwhile, the other rule makes changes to a number of different requirements related to obtaining a work permit. Some of these changes include requiring asylum seekers to wait 365 days before applying for work authorization, compared to the previous 150-day wait; and making asylum seekers ineligible for work authorization if they file their asylum applications after more than a year upon arriving in the United States.

The DHS argues that the rules are necessary in order to mitigate the strain on the agency’s resources that had been overwhelmed due to the influx of asylum seekers at the southern border and to “disincentivize aliens who are not bona fide asylum seekers from exploiting a humanitarian program to seek economic opportunity in the United States.”

“DHS believes that this rule stands as an important disincentive for aliens to use asylum as a path to seek employment in the United States. DHS further believes that this rule complements broader interagency efforts to mitigate large-scale migration to the U.S. southern border that preclude some asylum seekers from entering the United States,” the agency said.

The judge also held that the immigration groups were likely to succeed on their claim that the rules “are not the product of reasoned decisionmaking.”

“The agency never wrestled with the fundamental implications of deferring or denying advance work authorization. Substantially limiting approval of work authorization for bona fide asylees will inevitably affect their ability to afford the costs of seeking asylum, including hiring legal counsel,” Xinis wrote.

Representatives of ASAP and CASA celebrated the victory but recognized that the “fight is far from over.”

“The fight is far from over. I have no doubt that our members will keep fighting until every asylum seeker has the ability to work and live in safety in the United States,” Swapna Reddy, Co-Executive Director of ASAP, said in a statement (pdf).

“Not only has the Court recognized the tremendous harm of these new barriers to work authorization on asylum seekers, but it found that Chad Wolf is likely serving illegally as the head of DHS, a role he has used to attack immigrant families and communities across the United States. We will continue to fight to protect our members and build the power of working class communities of color, so that everyone is treated with the respect and dignity they deserve,” said Gustavo Torres, Executive Director of CASA.

The DHS and Justice Department did not immediately respond to The Epoch Times’ request for comment.

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