Judge rules against DHS in Global Entry case after department admitted to false statements

The department "undermined" the core values of the Administrative Procedure Act and made matters worse by "repeating their misleading, if not false, representations," District Judge Jesse Furman wrote in a scathing decision.

The judge, however, acknowledged that the ruling is "somewhat of an empty gesture," since the ban was already rescinded. Nonetheless, Furman concluded that "at a minimum," DHS' decision should be declared unlawful to ensure that it cannot be reinstated.

In February, acting Homeland Security Secretary Chad Wolf announced that New York state residents would no longer be allowed to participate in certain Trusted Traveler Programs, including Global Entry, due to provisions in the state's new "Green Light Law," which supported undocumented immigrants.

The New York law, which went into effect in December, allows undocumented immigrants to apply for New York driver's licenses while protecting applicants' information from immigration enforcement agencies. New York later amended the law to provide for the sharing of DMV information with federal immigration authorities specifically for acceptance into a Trusted Traveler Program, or to facilitate vehicle imports or exports.

In July, "in a rather surprising turn of events, DHS announced that it would 'lift its ban on the [TTP] for New York residents,'" Furman wrote. Later that same day, DHS admitted that it made false statements in court to defend its decision to block New York residents from participating the programs.

DHS did not immediately respond to a request for comment on the ruling.

The judge also took aim at Wolf's status, writing: "DHS's decision (the 'TTP Decision') was announced in a February 5, 2020 letter authored by Defendant Chad Wolf, purportedly the Acting Secretary of Homeland Security."

The court uses the word "purportedly" because there is "some doubt whether Wolf was then (and is now) lawfully exercising the authority of Acting Secretary of Homeland Security," according to the ruling.

The Government Accountability Office found in an August report that the appointments of Wolf and Ken Cuccinelli, the top two leadership roles at DHS, were invalid. The department has disputed the GAO conclusion.

Wolf is awaiting a possible Senate vote on his nomination to lead the department after the Senate Homeland Security Committee voted along party lines late last month to advance his nomination.

Last month, a federal judge in Maryland ruled that Wolf is likely unlawfully serving as acting secretary of the department.