Federal law commits the United States to providing humanitarian protections to eligible people fleeing persecution and violence in their home countries, reflecting the nation’s obligations under numerous international agreements. Among other things, these protections allow individuals who are at risk of suffering persecution to apply for asylum and for “withholding of removal” from the United States.

In December 2020, however, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) finalized a new regulation that drastically curtails the availability of asylum and related relief for people fleeing persecution. The new regulation, which violates federal laws in numerous ways, will have a devastating impact on asylum seekers and the organizations that provide legal services to them.

Along with others, CAC sued DHS and other federal agencies and officials on behalf of two nonprofit organizations, the Tahirih Justice Center and Ayuda, Inc., both of which provide legal services to asylum seekers, survivors of gender-based violence, low-income persons seeking immigration benefits, and others. Our lawsuit alleges that the issuance of the new regulation violated the immigration laws, the Administrative Procedure Act (APA), the Homeland Security Act (HSA), the Federal Vacancies Reform Act (FVRA), and the Constitution.

As our complaint explains, the purported Acting Secretary of Homeland Security who approved the regulation on behalf of DHS—Chad Wolf—had no authority to be the Acting Secretary, and he occupied that position in violation of the HSA, the FVRA, and the Appointments Clause. Because Wolf was never a valid Acting Secretary, the FVRA requires that the asylum regulation he approved “shall have no force or effect.” In addition, the regulation must be vacated under APA, which requires that all agency actions be taken “in accordance with law.”

Our lawsuit was filed in the U.S. District Court for the District of Columbia in January 2021. It seeks a ruling that the regulation is invalid and an order preventing the government from implementing it.

In February 2021, the case was stayed to allow the incoming administration to review the regulation, pursuant to a recent executive order directing agency leaders to reevaluate various immigration and asylum policies. The administration later announced that it was developing several new regulations that would address topics covered by the asylum regulation challenged in this case.

By September 2022, however, the administration still had not published even its initial proposals for these new regulations. The plaintiffs therefore asked the district court to partially lift the stay, allowing them to litigate their claim that the asylum regulation is void because it was issued without authority by Chad Wolf. In December 2022, the district court denied that motion but noted that the court was troubled by the length of the stay and that it would allow the plaintiffs to renew their motion if the government did not publish its proposed new regulations by June 2023.

By June 2023, the government still had not published any of its proposed new regulations. Accordingly, the plaintiffs filed a renewed motion to partially lift the stay, which is pending before the district court.