US court rules in favour of Caribbean asylum seekers

US court rules in favour of Caribbean asylum seekers

Wednesday, September 16, 2020

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NEW YORK, United States (CMC) — New York Attorney General Letitia James has helped to score a major victory for Caribbean and other asylum seekers, persuading the US District Court to order a preliminary injunction and block two Trump Administration rules that limit access to employment authorisations for asylum seekers.

Under the two new rules, James told the Caribbean Media Corporation (CMC) that individuals seeking asylum in the United States are indefinitely delayed and barred, in some cases, from obtaining authorisation to work.

Not only did the district court agree with 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 acting secretary of the US Department of Homeland Security (DHS), Chad Wolf, never legally ascended to the position.

Thus, from the first day, James said Wolf “unlawfully assumed the role of purported acting secretary” and, therefore, “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,” the New York attorney general said.

“Every decision Mr Wolf has made from trying to punish 'Dreamers' to targeting New Yorkers with an unlawful Trusted Traveller 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 US Supreme Court has blocked President Trump's bid to terminate the Deferred Action for Childhood Arrival (DACA) programme that permitted more than 650,000 undocumented Caribbean and other immigrants, who were brought to the US unlawfully as children, to live and work in the US without fear of deportation.

In September 2017, Trump announced that he planned to end DACA, which was created by the Obama Administration to give temporary, renewable protections to these young people, commonly referred to as “Dreamers”.

Trump's decision immediately triggered legal battles, with the programme remaining in limbo since the 2017 announcement.

“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,” James said.

Last month, she 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, 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 authorisation, and bar many from obtaining authorisation at all.

The second rule would eliminate the long-standing requirement that employment authorisation applications be processed within 30 days, thus allowing such applications to sit untouched indefinitely.

In the latest order, the court entered the preliminary injunction and agreed with 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 impact on bona fide asylum applicants.

Additionally, the court found, as James argued in the brief, that the rules would “irreparably harm asylum seekers” and that the balance of the equities and the public interest favour an injunction of the rules.

Further, the district court agreed with the plaintiffs that 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 authorisation rules”.

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 James said 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 US Customs and Border Protection (the position McAleenan was filling before he succeeded Nielsen), was to succeed the secretary in the event she resigned,” she said.

Last month, the US Government Accountability Office also concluded that Wolf was acting unlawfully in a role at DHS and that his orders were void.

In the 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 court said. “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 and the Government Accountability Office's finding last month, James said: “It is clear that Wolf did not have the authority to issue the rules and continues to have none today.”


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