Attorney General James Helps Secure Victory for Asylum Seekers, Court Rules Chad Wolf is Unlawfully Serving as Acting Secretary of Homeland Security

AG James Led Amicus Brief Against Trump Administration’s Efforts to 
Limit Access to Employment Authorization for Asylum Seekers 

Court Orders Preliminary Injunction Against Trump Administration’s Unlawful Rules
and Holds That Chad Wolf Never Properly Ascended to Role as Acting DHS Secretary 

NEW YORK – New York Attorney General Letitia James helped score a major victory for asylum seekers Friday night, persuading the U.S. District Court for the District of Maryland to order a preliminary injunction and block two Trump Administration rules that limit access to employment authorizations for asylum seekers. Under the two new rules, individuals seeking asylum in the United States are indefinitely delayed and barred, in some cases, from obtaining authorization to work. Not only did the district court agree with Attorney General James’ arguments in an amicus brief filed last month in the case that these rules are unlawful and should be preliminarily halted, but the court also said that the rules should have never been implemented because the purported acting secretary of the U.S. Department of Homeland Security (DHS), Chad Wolf, never legally ascended to the position — and thus, from the first day Wolf unlawfully assumed the role of purported acting secretary, he has lacked authority to issue orders or take other official actions.

“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,” said Attorney General James. “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. 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.”

Last month, Attorney General James led a coalition of 20 attorneys general and 10 major cities and counties from around the nation in filing an amicus brief in the case Casa de Maryland, Inc, et al. v. Wolf, urging the court to enter a preliminary injunction against the two Trump Administration rules. The first rule would require asylum seekers to wait a year before applying for employment authorization, and bar many from obtaining authorization at all. The second rule would eliminate the longstanding requirement that employment authorization applications be processed within 30 days, thus allowing such applications to sit untouched indefinitely.

In Friday’s order, the court entered the preliminary injunction and agreed with Attorney General James’ argument that the new rules are arbitrary and capricious and thus violate the Administrative Procedure Act. The court found that DHS failed to seriously consider the rules’ detrimental impacts on bona fide asylum applicants. Additionally, the court found — as Attorney General James argued in the brief — that the rules would irreparably harm asylum seekers and that the balance of the equities and the public interest favor an injunction of the rules.

Further, the district court agreed with the plaintiffs that Chad Wolf was not properly appointed to the position of acting secretary of Homeland Security and thus did not have authority to promulgate the asylum work authorization rules. Attorney General James has argued, herself, in other cases that 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 Kirstjen 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. Last month, the U.S. Government Accountability Office (GAO) also concluded that Wolf was acting unlawfully in a role at DHS and that his orders were void.

In Friday's order, the court specifically rebuked the Trump Administration’s decision to “leapfrog” the appropriate officials to ascend to the role of acting secretary “without legal authority.” Additionally, the court admonished the administration for violating the very laws it argued in the matter affecting asylum seekers: “As for the Government’s larger philosophical concerns about strain on the ‘rule of law,’ the agency would do well to look inward. The agency cannot itself violate those principles, then claim irreparable harm because it is held to account for such violations.”

With the court’s finding on Friday and the GAO’s finding last month, it is clear that Wolf did not have the authority to issue the rules and continues to have none today.