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Wolf quits as Homeland Security chief after judge's order over asylum claims

Recent court rulings over the validity of Chad Wolf's tenure as the head of the U.S. Department of Homeland Security, including a series of policies designed to clamp down on asylum along the U.S.-Mexico border, have forced the acting secretary to resign. 

Wolf announced his resignation on Monday in a letter to DHS employees, according to multiple reports.

Whether Wolf was legally in his post, or had been placed there in violation of federal laws, has been questioned in several lawsuits.

"I am saddened to take this step, as it was my intention to serve the department until the end of this administration," Wolf wrote. "Unfortunately, this action is warranted by recent events, including the ongoing and meritless court rulings regarding the validity of my authority as Acting Secretary," Wolf said in the letter obtained by The New York Times. "These events and concerns increasingly serve to divert attention and resources away from the important work of the Department in this critical time of a transition of power.”

His resignation will be effective at the end of Monday, he wrote. 

Peter T. Gaynor, the head of the Federal Emergency Management Agency, will replace Wolf as the acting secretary of Homeland Security. Gaynor will now find himself leading an agency with around 240,000 people just days after Trump supporters invaded the Capitol building, and just nine days before President-elect Joe Biden will be inaugurated. 

As one of Wolf's last actions, he announced that "in light of events of the past week and the evolving security landscape leading up to the inauguration," the agency would begin the "National Special Security Event operations for the 2021 Inauguration" on Wednesday, six days earlier than previously planned.

Wolf is the third Cabinet secretary to leave the Trump administration following the deadly January 6 riot at the Capitol incited by the president and his backers. Transportation Secretary Elaine Chao, and Education Secretary Betsy DeVos also announced their resignations. 

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Wolf's position as the head of DHS had become a controversial focus of civil rights and immigration-advocates, who challenged Wolf's position as the head of the nation'a largest law enforcement agency, arguing that Wolf's appointment violated the federal law that guides succession of the agency's leadership. 

From its creation in 2003 during the aftershocks of 9/11, the Department of Homeland Security had just six leaders before the Trump administration began. But during a four-year period, the White House repeatedly shifted, or sacked four leaders before landing on Chad F. Wolf in November 2019. Wolf has remained in that position, but was never formally nominated, much less confirmed by the Senate, throughout 2020. The White House submitted a request for his approval in August, but that never wound its way through Congress. 

Nineteen of the 72 leadership positions at DHS are currently filled by people who have not been nominated or confirmed. 

This including Ken Cuccinelli, who is in two acting roles at DHS—"Senior Official Performing the Duties of the Deputy Secretary" and "Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services"—and Mark A. Morgan, who is the "Senior Official Performing the Duties of the Commissioner" with U.S. Customs and Border Protection. 

The churn of leadership created a serious legal headache for the agency, as Wolf's tenure has provided fodder for several legal challenges filed against policies put in place by the agency.

In response, Trump administration officials tried to reframe their justifications about how Wolf was put in place, arguing first that Wolf was put in place by a succession order from former DHS head Kirstjen Nielsen, and then later, the agency submitted a new argument—or as the agency put it, an "alternate scenario"—that argued that Wolf's nomination to lead DHS allowed for the temporary elevation of FEMA administration Peter Gaynor, who then issued a memo on September 10, 2020 that designated a succession order that allowed Wolf to remain in the acting position.

Last week, the White House decided to rescind his appointment to the Senate just hours after Wolf criticized the actions of the president's supporters on Wednesday, after they stormed into the Capitol during a joint session of Congress. One women was shot and killed by security, and a U.S. Capitol Police officer died from injuries sustained during the invasion. 

Wolf said in a statement that the actions at the U.S. Capitol on Wednesday were “unconscionable," and he implored the president "and all elected officials to strongly condemn the violence." 

White House spokesman Judd Deere said the withdrawal of Wolf's nomination "was not related at all to Wednesday’s events or the Acting Secretary’s comments this morning. Acting Secretary Wolf remains the acting secretary and continues to perform the duties of his office," Reuters reported. 

"For months we have known Chad Wolf has been serving illegally in his position, so the timing of his resignation from the Department today is questionable. He has chosen to resign during a time of national crisis and when domestic terrorists may be planning additional attacks on our government. Unlike others, he is apparently not leaving the Trump Administration on principle," said Rep. Bennie G. Thompson, Chairman of the Committee on Homeland Security. "If it is true he is resigning because of recent Federal court decisions, then it is an admission that his policy decisions are indeed invalid. Under this scenario, Ken Cuccinelli must also resign." 

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"The Trump Administration too often used the Department as a political weapon, left countless senior leadership positions vacant, and let morale suffer. Our homeland security has diminished as a result," Thompson said. "Thankfully, with a new Administration, the 240,000 men and women of the Department of Homeland Security will have much better leadership soon and this dark chapter will be over." 

In December, two human rights groups—Immigration Equality and Pangea Legal Services—filed separate lawsuits over the administration's moves to narrow the ability for people to pass initial credible fear screenings and enter the asylum process, and block asylum requests on the grounds that asylum seekers could be a "danger to the security of the United States" if they have traveled through a country suffering from a coronavirus outbreak. 

Even as Wolf's nomination was rescinded, August Flentje, a Justice Department lawyer, was on Zoom telling U.S. District Judge James Donato that Wolf's tenure as acting secretary was legal, and that decision's made while he was in charge of DHS should remain in force, despite multiple legal challenges. 

The groups argued that Wolf's attempts to further restrict asylum at the border were "arbitrary, capricious, unlawful and procedurally improper" under federal law, in part because he was not the lawful head of DHS.  

This argument was buttressed by an opinion from the federal watchdog the Government Accountability Office, which said in August that neither Wolf, nor his deputy Ken Cuccinelli were legally appointed to their positions, and five other courts agreed. 

Late Friday, U.S. District Judge James Donato agreed with those groups, granting a preliminary injunction that blocks the two rules from being put into effect.  

"Wolf has not spent his time idly at DHS," Donato wrote. "During his relatively brief tenure, he has attempted to suspend the Deferred Action for Childhood Arrivals (DACA) program, and impose administrative fees for immigration services and eliminate fee waivers, among other actions. These efforts resulted in several lawsuits in federal courts across the United States, each of which challenged Wolf’s rulemaking authority on the same grounds presented by plaintiffs here. In all of these cases, the district courts have concluded that Wolf was not a duly authorized Acting Secretary, and that his actions were a legal nullity," Donato wrote. 

In a 14-page, sharply-critical opinion, Donato agreed with five other district courts that Wolf was not legally appointed to become the head of DHS, and he called DHS's attempts to get around those courts a "troubling litigation strategy." 

" In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through," Donato wrote. "To be sure, one court decision alone does not necessarily close the door to any further cases or arguments along similar lines. Our common law system contemplates that more than one judicial examination of facts and issues is often merited. But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum. That is what the government is doing here." 

Donato wrote that he "took pains" during Wednesday's arguments " to discuss this with counsel for the government, and specifically asked how their arguments here are in any way different from the ones made and rejected in the preceding cases."

"Counsel responded mainly with a disparaging comment to the effect that the other district courts had shirked from working their way through the record. That is untrue. Each of the prior decisions conducted a painstaking analysis of the facts with respect to the Acting Secretary position at DHS, with full attention to the unprecedented efforts to validate Wolf’s claim to the job, irrespective of governing law and procedures," Donato wrote. "A good argument might be made that, at this point in time, the government’s arguments lack a good-faith basis in law or fact." 

And, Donato rejected the theory that Gaynor could have placed Wolf in charge, noting that Flentje "abandoned this theory at the hearing" by telling the court that Gaynor "never" was the Acting Secretary of Homeland Security," he said. "Because Gaynor was never the Acting Secretary, he did not have authority," to change the order of succession at DHS, Donato wrote. "It follows that Gaynor could not have designated Wolf to be Acting Secretary, and that Wolf’s effort to ratify his June 2020 actions as Acting Secretary is of no moment legally." 

Along with Wolf, and the other Cabinet secretaries, several Trump administration officials who have resigned after the chaos at the Capitol on Wednesday. This includes Stephanie Grisham, the former White House press secretary and first lady Melania Trump's chief of staff, as well as  deputy White House press secretary Sarah Matthews; deputy national security adviser Matt Pottinger; White House social secretary Rickie Niceta; the US's special envoy to Northern Ireland and former White House chief of staff, Mick Mulvaney; and other officials from the Commerce Department and National Security Council.

Correction: An earlier version of this report included an incorrect number of officials who have headed DHS prior to the Trump administration, leaving one out. There were six individuals who previously helmed the department.

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Paul Ingram/TucsonSentinel.com

Acting DHS Sec. Chad Wolf tours the U.S.-Mexico border in a CBP helicopter in May.