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Judge rules Chad Wolf likely unlawfully serving as Homeland Security secretary and temporarily blocks some asylum restrictions

Updated 10:59 AM ET, Tue September 15, 2020

(CNN) - A federal judge in Maryland has ruled that Chad Wolf is likely unlawfully serving as acting secretary of the Department of Homeland Security and temporarily barred the Trump administration from enforcing new asylum restrictions on members of two immigration advocacy groups.

Judge Paula Xinis, in a 69-page ruling issued Friday, wrote that the two groups 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."

Subsequently, Wolf didn't have the authority to impose the asylum rules that are being challenged, Xinis ruled. The new requirements, which court documents say took effect in late August, concern employment, and the case is ongoing.

Xinis' ruling does not mean Wolf is leaving his position. The appointments of Wolf and his No. 2, Ken Cuccinelli, to the top leadership roles in the Department of Homeland Security have increasingly come under scrutiny, though both continue to serve in their posts. The Trump administration appealed a federal judge's ruling earlier this year that it was unlawful to appoint Cuccinelli to lead the agency responsible for processing US immigration requests, and he remains in that post more than six months later. The case before Xinis is ongoing.

CNN has reached out to the department for comment.

Last month, a coalition of 20 state attorneys general and 10 cities and counties challenged rules imposed by the Trump administration that they argued limited access to employment authorization for asylum seekers, New York Attorney General Letitia James' office said Monday.

"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," James' office said.

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."

"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.

Xinis' order granted injunctive relief to only members of Casa de Maryland, Inc. and Asylum Seeker Advocacy Project, two of the lawsuit's plaintiffs 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.

James welcomed the ruling, calling Wolf a man with "no authority and no business sitting in the chair of the acting secretary of Homeland Security."

"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," she said.

CNN has previously reported that the Government Accountability Office found that Wolf and Cuccinelli, the senior official performing the duties of deputy secretary, were appointed as part of an invalid order of succession.

"We vehemently disagree with what the GAO has put out," Wolf told CNN's Jake Tapper at the time.

Wolf has been at the forefront of a host of issues like immigration, civil unrest and the coronavirus pandemic response, and as a result, has come under criticism for his actions. During Wolf's tenure, the department has been marked by a focus on the border wall, a fight with New York over Global Entry and more recently, a deployment of federal officers to Portland, Oregon, in opposition to local officials.

Wolf has been the acting secretary since November 2019. The department has not had a confirmed secretary since April 2019 when former Secretary Kirstjen Nielsen was forced to resign.

President Donald Trump last month announced that he would officially appoint Wolf to take over the role on a permanent basis, and his nomination was formally sent to the Senate last week.

This story has been updated with additional developments.


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