Citing DHS secretary’s unlawful appointment, court blocks changes further gutting asylum system

Citing DHS secretary’s unlawful appointment, court blocks changes further gutting asylum system

A federal judge on Friday blocked the recently finalized Trump administration rules that advocates have previously said “all but gut” the U.S. asylum system, ruling that unlawfully appointed acting Department of Homeland Security (DHS) Secretary Chad Wolf lacked the authority to implement the anti-asylum changes that were set to go into effect just days before President-elect Biden’s inauguration.

Numerous courts have already invalidated several Trump administration policies due to the fact that Unlawful Chad is unlawfully occupying office at DHS. CBS News reports that in Friday’s ruling, Judge James Donato of the U.S. District Court in San Francisco “said Trump administration lawyers ‘recycled’ arguments to defend the legality of Wolf’s appointment, ‘as if they had not been soundly rejected in well-reasoned opinions by several courts.’”  

Policy experts had said that if the rules had gone into effect, “none but the lucky few will be able to win asylum. The regulation creates near-total bans on asylum for wide swathes of people and herculean procedural barriers.” Even though the nearly 90,000 comments made when the administration opened the rule to public comment were in opposition to the changes, the administration set them to go into effect nine days before Biden is to be sworn into office.

”Aaron Frankel, an attorney for plaintiffs, has called the rules ‘nothing less than an attempt to end the asylum system,’” NBC News reported.

Judge Donato was not sparing of the government’s arguments, noting that the DOJ and DHS “recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts.”

— Aaron Reichlin-Melnick (@ReichlinMelnick) January 9, 2021

Judge Donato very pointedly finishes by saying that “A good argument might be made that, at this point in time, the government’s arguments lack a good-faith basis in law or fact”—which could make them sanctionable. He then gracefully backs down and says that’s unnecessary.

— Aaron Reichlin-Melnick (@ReichlinMelnick) January 9, 2021

Donato can’t help but get in a last kick, issuing the injunction against “Chad F. Wolf, in his official capacity, if any, as Acting Secretary of DHS.” He does the same for FEMA administrator Pete Gaynor, who DHS had earlier tried to say kinda-sorta was/wasn’t Acting Secretary.

— Aaron Reichlin-Melnick (@ReichlinMelnick) January 9, 2021

However, Donato’s ruling will be limited by the fact that the Trump administration still has other policies in place blocking asylum-seekers, like the Remain in Mexico policy and the politically motivated public health order pushed by White House aide and noted white supremacist Stephen Miller. “Still, letting the rules take effect would have been felt by some who can still claim asylum and make it significantly more difficult for all asylum-seekers once pandemic-related measures are lifted,” NBC News continued.

“This is the most far-reaching of the midnight asylum regulations unveiled in the Trump administration’s final days,” Harvard Immigration and Refugee Clinical Program Director Sabrineh Ardalan told CBS News. “But try as it may, this administration cannot destroy our asylum system and rewrite our laws by executive fiat.”

Unlawful Chad was also at the center of one of the most far-reaching rulings of the entire administration, when a federal court last year similarly said he was unlawfully serving at DHS and forced officials to fully reopen the Deferred Action for Childhood Arrivals (DACA) program to new applicants. “Today, after waiting nearly three years, I will finally be able to apply for DACA,” Batalla Vidal v. Wolf plaintiff Ximena Zamora said in a statement received by Daily Kos at the time.

The Trump administration last week withdrew Unlawful Chad’s nomination to officially lead the department after finally submitting it in a blatant attempt to save other anti-immigrant and anti-asylum policies he’s signed into place. Immigration policy experts say his continued unlawful status could help the incoming administration reverse other policies by the outgoing administration.

“With Wolf’s confirmation dead, Biden now has a powerful tool to get rid of Trump DHS policies; decline to appeal decisions striking them down on the grounds that Wolf lacked authority,” American Immigration Council policy counsel Aaron Reichlin-Melnick tweeted.

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