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DHS watchdog won't probe Wolf, Cuccinelli appointments

DHS Inspector General Joseph Cuffari has declined to investigate whether Acting Secretary of Homeland Security Chad Wolf (shown) is lawfully serving in his position. File Photo by Alex Wong/UPI
DHS Inspector General Joseph Cuffari has declined to investigate whether Acting Secretary of Homeland Security Chad Wolf (shown) is lawfully serving in his position. File Photo by Alex Wong/UPI | License Photo

Sept. 15 (UPI) -- The Department of Homeland Security inspector general has declined to investigate whether the acting Homeland Security secretary and his deputy are lawfully serving in their roles.

Lawmakers had requested the review based on an August Government Accountability report which found that Acting Secretary of Homeland Security Chad Wolf and Deputy Secretary Ken Cuccinelli were unlawfully serving in their roles because they were appointed as part of an invalid order of succession.

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Deputy Joseph Cuffari responded in a letter that there were "several troubling aspects" of the August GAO decision and there was also "inter-branch disagreement."

"While DHS OIG does not have a strict policy against reviewing matters that are subject of litigation, under the particular circumstances it would be pointless for DHS OIG to adds its voice to what has become a bitter inter-branch disagreement," Cuffari wrote in the letter.

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The inspector general's decisions comes after a federal judge ruled Friday that Wolf is likely unlawfully serving as acting secretary of the DHS, halting enforcement of some new asylum rules.

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At issue were new Trump administration rules overhauling a process that has allowed asylum seekers work authorization to support themselves while they await a final decision in their asylum application. Among them, one new rule more than doubles the waiting period for asylum seekers to apply for work authorization from 150 to 365 days. A second removes the 30-day deadline to process the applications.

Five non-profit organizations advocating for immigrants had brought the suit against Wolf, arguing the rules harmed them and Wolf was not legally appointed under the Federal Vacancies Reform Act.

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Judge Paula Xinis of the U.S. District Court for the District of Maryland issued the 69-page ruling finding that Wolf was likely unlawfully serving in the role because DHS used the wrong line of succession.

"Plaintiffs 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," Xinis concluded. "By extension, because Wolf filled the role of acting secretary without authority, he promulgated the challenged rules also 'in excess of ... authority,' and not 'in accordance with the law.'"

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Still, Xinis limited injunctive relief at this point to two of the nonprofit agencies, CASA and Asylum Seeker Advocacy Project, which she said "have demonstrated associational standing."

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CASA has a mission to assist immigrants in relocating to the United States lawfully and over 100,000 members, according to the judge's order.

The Asylum Seeker Advocacy Project provides community and legal support to 4,000 members, the majority of whom are mothers who sought asylum at the Mexico-U.S. border, the order also shows.

New York Attorney General Letitia James, who led a coalition of 20 attorney generals and 10 major cities and counties from around the nation in filing an amicus brief in the case, lauded the decision.

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"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," James said in a statement. "Every decision Mr. Wolf has made -- from trying to punish Dreamers to targeting New Yorkers with an unlawful Trusted Traveler suspension, and everything in between -- has been perpetuated by a man with no authority and no business sitting in the chair of the acting secretary of Homeland Security. 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."

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A federal judge also ruled in March that Cuccinelli was unlawfully appointed to his position, but the Trump administration appealed and he remains in his post. Wolf also remains in his post.

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