Immigration and Citizenship

Northwest Immigrant Rights Project v. USCIS

In Northwest Immigrant Rights Project v. USCIS, the U.S. District Court for the District of Columbia considered a challenge to an effort by the purported Acting Secretary of Homeland Security, Chad Wolf, to drastically increase the costs of applying for asylum, naturalization, and other immigration benefits.

Case Summary

The Constitution requires that high-level federal officers like the Secretary of Homeland Security be appointed by the president with the advice and consent of the Senate.  The requirement of Senate confirmation is designed to ensure the accountability of agency heads, who enjoy significant authority to establish policy.  To further preserve the Senate’s constitutional prerogatives, Congress passed the Federal Vacancies Reform Act (FVRA), which places strict limits on the use of “acting” officers to fill vacant positions.

Despite these safeguards, the Department of Homeland Security has operated without a Senate-confirmed Secretary since April 2019. In August 2020, the Department’s purported Acting Secretary, Chad Wolf, approved a new regulation that drastically increases the costs of applying for immigration benefits. Among other things, the new regulation charges a non-waivable fee for asylum applications for the first time in U.S. history. The regulation also requires asylum seekers to pay a non-waivable fee of nearly $600 to seek work authorization, and it increases the cost of applying for naturalization, in some cases from $0 to $1,170.

Nonprofits that provide legal assistance to immigrants challenged the legality of the Department’s new regulation in court. CAC filed an amicus brief in support of that challenge.

Our brief first described how Congress enacted the FVRA in response to the executive branch’s increasing noncompliance with the Appointments Clause and with prior legislation that limited the use of acting officials. Next, we explained that Chad Wolf is violating the FVRA by serving as Acting Secretary of Homeland Security, for two independent reasons. First, under the FVRA and the statutes governing the Department, Wolf was never eligible to become the Acting Secretary, and he assumed that position unlawfully. Second, even if Wolf’s initial appointment were valid, the FVRA’s time limits on service for an Acting Secretary expired well before Wolf approved the regulation at issue. Finally, our brief described the consequences of Wolf’s unlawful tenure. Because Wolf is not a valid Acting Secretary, the FVRA requires that the new regulation he approved must have no force or effect. In addition, Wolf’s approval of this regulation must also be set aside under the Administrative Procedure Act (“APA”), which requires that all agency actions be taken “in accordance with law.”

The District Court for the District of Columbia granted the plaintiffs’ motion for a preliminary injunction, concluding that Wolf’s appointment as Acting Secretary was invalid under the statutes governing the Department of Homeland Security. Because Wolf had no authority to be Acting Secretary, the court further determined, the fee regulation that he approved was “not in accordance with law” under the APA.

Case Timeline

  • September 11, 2020

    CAC files amicus curiae brief in the District Court for the District of Columbia

    D.D.C. Amicus Br.
  • October 8, 2020

    The District Court for the District of Columbia issues a preliminary injunction

More from Immigration and Citizenship

Immigration and Citizenship
U.S. Court of Appeals for the Fourth Circuit

Miranda v. Garland

In Miranda v. Garland, the U.S. Court of Appeals for the Fourth Circuit is considering whether the government may incarcerate someone without bail during deportation proceedings without showing that the person would likely abscond or...
Immigration and Citizenship
April 19, 2021

Biden Clashes With His Allies in Supreme Court Green-Card Case

Bloomberg News
President Joe Biden’s balancing act on the politically fraught issue of immigration moves to the...
By: Brianne J. Gorod, By Greg Stohr
Immigration and Citizenship
U.S. Supreme Court

Sanchez v. Mayorkas

In Sanchez v. Mayorkas, the Supreme Court held that the Immigration and Nationality Act does not permit individuals who have received Temporary Protected Status to adjust to lawful-permanent-resident status if they were not lawfully inspected...
Immigration and Citizenship
U.S. Supreme Court

Wolf v. Innovation Law Lab

In Wolf v. Innovation Law Lab, the Supreme Court is considering whether a Trump administration policy authorizing the return of certain noncitizens to Mexico while they await adjudication of their asylum applications violates the Immigration...
Immigration and Citizenship
January 15, 2021

RELEASE: New Court Challenge Says Trump Anti-Asylum Rule “Unlawful, Unconstitutional, Invalid” 

WASHINGTON – Yesterday, the Constitutional Accountability Center (CAC), together with co-counsel, filed a complaint in the U.S. District Court for the District of Columbia challenging...
By: Elizabeth B. Wydra, Brian R. Frazelle
Immigration and Citizenship
U.S. District Court for the District of Columbia

Tahirih Justice Center v. Gaynor

Challenging the Trump Administration’s effort to dramatically restrict eligibility for asylum through a regulation that was approved by an illegally serving Acting Secretary of Homeland Security.