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Federal Court Restores Access to Work Permits for Many Asylum Seekers

A federal court issued a decision on February 7 invalidating two Trump-era regulations that restricted access to work permits for asylum seekers. In her decision, Judge Beryl Howell of the District Court for the District of Columbia found that Chad Wolf had not been lawfully serving as Acting Secretary of the Department of Homeland Security (DHS) when it issued the two regulations, so the regulations were void from the start.

The case, AsylumWorks v. Mayorkas, was brought by a group of affected asylum seekers and three organizations arguing that the rules interfered with their missions to provide social services and other assistance to asylum seekers. The decision restores access to work permits—or employment authorization documents (EADs)—for asylum seekers who were barred from employment authorization or whose work permits were delayed because of the regulations.

DHS issued the two regulations challenged in AsylumWorks in June 2020. The first rule, known as the “Timeline Repeal Rule,” eliminated the government’s 30-day deadline to adjudicate initial asylum seeker work permit applications.

The second regulation, the “EAD Bar Rule,” imposed a series of restrictions on eligibility for work permits. This included barring work permits for asylum seekers who entered without inspection and those who were deemed to have “delayed” their asylum applications. The regulation also more than doubled the amount of time asylum seekers had to wait to apply for work permits after filing for asylum, from 150 days to one year.

Before the AsylumWorks decision, a preliminary injunction in another case, CASA de Maryland v. Mayorkas, acted as an important stopgap for asylum seekers who could become members of CASA or the Asylum Seeker Advocacy Project, the organizations that brought the CASA lawsuit. However, the CASA injunction does not apply to all aspects of the two regulations. For example, asylum seekers who entered the United States without inspection after the rules went into effect remained barred from work authorization until Monday’s ruling.

The AsylumWorks decision focuses on whether Wolf was lawfully serving as Acting Secretary of DHS at the time DHS issued the regulations. Former DHS Secretary Kirstjen Nielson and Acting Secretary Kevin McAleenan attempted to make changes to the order of succession for the DHS Secretary position before their respective resignations. Through the revised order of succession, Wolf became Acting DHS Secretary after McAleenan’s resignation.

Analyzing the issue under the Federal Vacancies Reform Act (FVRA) and several other statutes that dictate order of succession for acting officials, the court found that Wolf’s tenure as Acting DHS Secretary was unlawful because the changes to the order of succession did not pass muster. And under the FVRA, all actions taken by an official whose appointment is unlawful are also unlawful. This includes the two regulations challenged in AsylumWorks, which DHS issued under Wolf.

This decision is the seventh to find Wolf’s appointment unlawful and the first to hold that the current DHS Secretary, Alejandro Mayorkas, could not ratify Wolf’s actions after the fact because they were void from the start. Mayorkas had attempted to ratify the Timeline Repeal Rule once in office, but the court found that Mayorkas could not cure the defects caused by Wolf’s unlawful appointment.

The AsylumWorks decision is another important step toward undoing the Trump administration’s series of attacks on asylum seekers. Voiding the two regulations restores dignity to asylum seekers by removing unnecessary barriers to employment eligibility while they await a decision on their asylum claims, a process that can take years in the backlogged immigration courts. It also ensures that asylum seekers can access other crucial benefits that are often dependent on a work permit, such as a driver’s license.

The government has not indicated whether it will appeal the decision to the D.C. Circuit or seek a stay, or how it will implement the decision. But for now, asylum seekers should be able to apply for work authorization without the harmful restrictions imposed by these rules.

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