SAN FRANCISCO (CN) — In strong language punctuated by a great deal of metaphor, a federal judge reproached Justice Department attorneys for continuing to push the idea that Chad Wolf is lawfully serving as the acting secretary of the Department of Homeland Security.
“Let me be candid with you. The government keeps running the same 8-track tape and the sound is not getting better,” U.S. District Judge James Donato said Thursday at a hearing on a lawsuit challenging new bars to asylum eligibility promulgated under Wolf’s leadership.
Wolf has four times been found by federal judges to have been unlawfully filling the role left vacant after former Homeland Security Secretary Kirstjen Nielsen resigned in April 2019, most recently by U.S. District Judge Nicholas Garaufis in New York.
Wolf’s byzantine ascension to acting secretary in November 2019 is well documented in Garufis’s ruling, but at bottom, the order of succession had gone awry. Nielsen should have been succeeded by Christopher Krebs, who was director of the Cybersecurity and Infrastructure Security Agency — a position he remained in until November, when President Donald Trump fired him after he refuted the president’s baseless election fraud claims.
But Kevin McAleenan, the then-commissioner of Customs and Border Protection, took the job in error. McAleenan, in turn, unlawfully designated Wolf as his successor when he resigned in November 2019.
Wolf, Garaufis noted in his 31-page order issued this past November, was seventh in line for the job had “leapfrogged the FEMA administrator, the CISA director and five others in the order of succession.”
During Wolf’s tenure, Homeland Security issued rules making asylum harder to obtain. For example, persecution over gender or “resistance to recruitment or coercion by guerilla, criminal, gang, terrorist or other non-state organization” would no longer be a sufficient reason to grant asylum.
The changes also bar asylum for those who have been in the United States unlawfully for more than a year, failed to file a tax return or report taxable income, or had two or more prior asylum applications denied for any reason.
A host of states and immigration groups sued to block these changes, calling them both arbitrary and dangerous. LGBTQ groups in particular expressed dismay over the exclusion of gender persecution as a consideration for asylum, writing in their lawsuit that it creates a “confusing mess,” leaving “LGBTQ refugees uncertain how LGBTQ asylum claims will be treated going forward.”
Donato did not address the merits of these claims at Thursday’s hearing, instead focusing on Wolf’s unlawful role as acting secretary.
The asylum changes could be thrown out if Donato, like other judges and the independent Government Accountability Office have, finds Wolf to have been illegally appointed.
Donato’s remarks Thursday revealed he is absolutely behind his judicial colleagues, and that he wasn’t inclined to accept the same arguments already rejected by other courts.
“[Wolf] may have used the title but as a legal matter, the office of acting secretary was not occupied,” he said. “It’s the equivalent of a squatter in a rental building.”
Justice Department attorney August Flentje said Donato shouldn’t ignore Nielsen’s “clear intent,” when she said five times that she was changing the order of succession.
“You have argued this four times and you rolled snake eyes,” Donato said. "You don't keep peddling the same bucket of fish until someone buys it.”
He added, “This is taking up an enormous amount of a fifth district court's judicial resources for arguments that have had a stake driven through their heart four other times.”
Civil rights attorney Omar Gonzalez-Pagan didn’t have much to add. “This is trotting out arguments that have been rejected by the courts and the GAO twice. There is no need to gild the lily here,” he said.
Donato also flatly rejected an alternative — even more complicated — theory that FEMA Administrator Peter Gaynor also delegated his authority to Wolf under the Federal Vacancy Reform Act (FVRA).
After Trump formally nominated Wolf to the position in September 2020, the Federal Vacancy Reform Act (FVRA) made it possible for Gaynor to become acting Homeland Security secretary and revise the order of succession — terminating his own authority and handing the reins to Wolf.
The problem is, Gaynor’s name was never sent to Congress designating him as acting secretary, and the government conceded Gaynor likely made the succession order just before Trump nominated Wolf.
Donato called the Gaynor order “a bit of a sham,” to which Flentje replied, “Those steps were taken in an abundance of caution because courts are not giving meaning to Secretary Nielsen's express and clear designation that she issued the day prior to her resignation, which is a serious problem in our view.”
Donato said he will issue a ruling Friday afternoon and asked the parties to prepare for a hearing in February or March on the merits of the case.