DHS Blasts GAO Report, Demands Rescission and GAO Refuses

September 28, 2020

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.

Following a recent bombshell report from the U.S. Government Accountability Office (GAO) finding invalid the appointments of Chad Wolf as Acting Secretary for the Department of Homeland Security (DHS) and Kenneth Cuccinelli as Senior Official Performing the Duties of Deputy Secretary, DHS asked GAO to rescind its finding. GAO refused.

DHS’s letter to GAO’s General Counsel, Thomas Armstrong, sent August 17, 2020, and signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel, states that GAO’s conclusions are “baseless and baffling” and that the report is “premised on multiple errors,” questions GAO’s authority to even issue the report, calls the timing of the report “suspect” because it was released 80 days before the presidential election, questions the staffing of the report and asserts that GAO “must accept [DHS’s] permissible interpretation” that “[t]he moment that Secretary [Kirstjen] Nielsen invoked her authority, she overrode all past designations.” The letter includes a photo of Secretary Nielsen swearing in Acting Secretary Kevin McAleenan, which GAO had found set in motion a chain of invalid succession.

GAO’s response to DHS’s letter, sent August 21, 2020, and signed by Mr. Armstrong, states that a rescission of its August 14 decision is denied because “DHS has not shown that our decision contains either material errors of fact or law, nor has DHS provided information not previously considered that warrants reversal or modification of the decision.” Among other things, GAO’s letter notes that “GAO will modify or reverse a prior decision only if it contains a material error of fact or law.” GAO further said that an agency’s interpretation “is not entitled to deference unless the controlling language is ambiguous, nor is deference available” to an agency’s rationalization advanced after the fact to defend past agency action.