Judge: Acting Immigration Services Director Was Unlawfully Appointed

Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services testifies at a House Oversight subcommittee hearing on deportation of critically ill children on Capitol Hill in Washington, on Wednesday, Oct. 30, 2019.

AP / Jose Luis Magana

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Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services testifies at a House Oversight subcommittee hearing on deportation of critically ill children on Capitol Hill in Washington, on Wednesday, Oct. 30, 2019.

Ken Cuccinelli — also acting DHS secretary — was named acting head of USCIS without having first served in a subordinate position.

A federal judge in Washington, D.C., ruled on Sunday that the official acting as director of U.S. Citizenship and Immigration Services was unlawfully named to the position and, thus, some of his policies are void. 

U.S. District Judge Randolph Moss ruled that Ken Cuccinelli, who now holds the dual titles of deputy secretary for DHS and “senior official performing the duties of the director” of USCIS, cannot be the interim leader of the immigration services agency because he did not serve in a subordinate role there first, as required by the 1998 Federal Vacancies Reform Act. The Vacancies Reform Act dictates how executive agency leadership positions are filled before there is a permanent replacement. 

When USCIS Director L. Francis Cissna resigned in June 2019, then-deputy director Mark Koumans took over in an acting capacity. But nine days later, then-acting Homeland Security Department Secretary Kevin McAleenan appointed Cuccinelli to be “principal deputy director,” a position that did not exist prior to his appointment. That same day he made Cuccinelli “first assistant and most senior successor to the director of [U.S. Citizenship and Immigration Services]” to justify his promotion to acting director. Legal experts questioned the move at the time.

“Labels—without any substance—cannot satisfy the [Federal Vacancies Reform Act’s] default rule under any plausible reading of the statute,” Moss wrote. “Nothing in the historical record of the Vacancies Act… counsels in favor of construing the phrase ‘first assistant’ to include those who hold the title of ‘first assistant’ but occupy an office that, in actuality, was not, is not, and never will be subordinate to the principal office.” In other words, the changes let Cuccinelli “leapfrog” Koumans to essentially become the acting director. 

As a result, the judge ruled that Cuccinelli’s asylum directives—that were the premise of the initial case brought by immigration advocacy groups on behalf of Honduran asylum seekers—were void.  One directive shortened the amount of time asylum seekers have to prepare for “credible-fear interviews” with immigration officials from 48 or 72 hours to a full calendar day from when they arrived at a detention facility. The other banned asylum officers from granting extensions to the interview director “except in the most extraordinary of circumstances.” Cuccinelli has been one of the Trump administration’s biggest immigration hard-liners.

U.S. Citizenship and Immigration Services and Homeland Security did not respond immediately to Government Executive for comment on Sunday’s ruling. 

On Monday morning Cuccinelli disputed the ruling on Fox NewsHe said the decision was “something of an outlier” and “you can expect an appeal.” The ruling will not change “anything we’re doing going forward,” he said, adding the current head of daily operations at the agency will reissue his policies as a “precautionary measure.”

This was not the first challenge to the succession order at the agency. In November, top House Democrats requested that the comptroller general review the appointment of Chad Wolf as acting secretary of Homeland Security and Cuccinelli’s appointment as acting deputy secretary. Documents showed that former Secretary Kirstjen Nielsen changed the department’s succession order upon her departure and that may have put some of McAleenan’s appointments in “legal jeopardy.” The Government Accountability Office told Government Executive it took up the request, but could not give a timeframe for the decision. 

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