A recent non-binding report by the Government Accountability Office (GAO) found the appointments of Kevin McAleenan and Chad Wolf (both as “acting” DHS Secretaries) and Ken Cuccinelli (senior official performing the duties of the deputy secretary) violated the governing federal and DHS succession rules because they were not eligible for the positions they occupy.

The GAO did not determine who should be in those roles or whether any actions taken by the current leadership are invalid. Those questions were referred to the DHS Office of Inspector General.

The rapidity and breadth of the Trump Administration’s changes to immigration policies, particularly in the past year, have felt a little like being in warp speed on a star cruiser. The rapid governmental changes to long-standing immigration policies, without legislative input or a regulatory process, have come under fire as opponents challenge the validity of these moves. The GAO has given additional ammunition to individual plaintiffs and advocacy groups who seek to argue that the policies are invalid.

In the meantime, in March 2020, a District Court in D.C. ruled that because Cuccinelli had been illegally appointed, the two policies he implemented, which further complicate the process of applying for asylum, were invalid. The Administration initially appealed the decision, but on August 14, 2020 – just as the GAO released its report – the appeal was withdrawn in a victory for the plaintiffs and asylum seekers.

It looks like another asylum-related policy also may be invalidated. The rule scheduled to take effect on August 25, 2020, would prevent asylum-seekers who do not enter the U.S. at designated ports of entry from obtaining work authorization while they wait for their asylum determinations, absent a special showing of “good cause.” Because asylum cases can take years to adjudicate, this proposed rule would financially cripple many asylum seekers and hinder their ability to support themselves or their families. The Maryland District Court judge in that case said the GAO report “aligns closely with her reading of the law and thinking on the plaintiffs’ argument that Wolf and his predecessor, Kevin McAleenan … were improperly appointed.”

If the GAO’s report is upheld, it would mean that policies issued by DHS in the last year-and-a-half could be subject to challenge and potentially invalidated. According to the GAO, Kirstjen Nielsen, who resigned from her post in April 2019, was the last DHS Secretary to be properly appointed. President Donald, Trump, who is fond of “acting” officials because of the flexibility he has over their tenures, may yet have to submit nominees to Senate confirmation hearings.

Any actions taken by DHS or USCIS by McAleenan, Wolf, or Cuccinelli, or under their direction, could be challenged on this score, including: DHS’ failure to accept new DACA applications in defiance of the U.S. Supreme Court ruling, upcoming USCIS fee increases, the Public Charge rule, changes in the treatment of F-1 students, and policy changes around H-1B and L-1 nonimmigrant visas, among many others.

The Administration has responded that the GAO report is “baffling and baseless.” The GAO said it “stands by its decision.” Further litigation is expected on this topic, but, given the appeals process, there may not be any final decisions prior to the November election.

Jackson Lewis attorneys will provide updates as they become available.