Acting USCIS Director Ken Cuccinelli testifies before the House Oversight and Reform Committee on Oct. 30, 2019. (C-SPAN video)

Cuccinelli’s Appointment to Lead USCIS Ruled Unlawful Under Federal Vacancies Reform Act

A federal judge in D.C. ruled Sunday that Ken Cuccinelli was unlawfully named acting director of U.S. Citizenship and Immigration Services, thus invalidating asylum policies he implemented while in charge of the agency.

Cuccinelli was named acting deputy Homeland Security secretary in November while retaining the USCIS role he assumed in June after Director Lee Cissna left the agency.

U.S. District Judge Randolph Moss ruled that Cuccinelli’s USCIS appointment ran afoul of the Federal Vacancies Reform Act, under which the “first assistant” to the vacant office automatically serves as the acting official when a vacancy arises.

Cissna’s first assistant was Deputy Director Mark Koumans, who served in the role of acting director for only nine days before Cuccinelli was appointed to the newly created position of principal deputy director. On that day, then-Acting DHS Secretary Kevin McAleenan revised the rules of succession to designate the principal deputy director as “the First Assistant and most senior successor to the Director of USCIS”; that revision was due to expire “automatically, without further action, upon the appointment of a new Director of USCIS by the President.”

Democracy Forward and the Catholic Legal Immigration Network, on behalf of a Honduran asylum-seeking family and the Refugee and Immigrant Center for Education and Legal Services, challenged in court Cuccinelli’s appointment and the directives he took to accelerate asylum hearings by allowing asylum-seekers less preparation for their credible fear interviews. The plaintiffs also said Cuccinelli eliminated the in-person legal orientation process for asylum-seekers that allowed them to ask questions about their legal rights, and said the asylum changes were arbitrary, lacked justification and were based on “animus toward immigrants.”

“On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced-time-to-consult and prohibition-on-extensions directives,” Moss wrote in his ruling. “The remedy for that deficiency, moreover, is compelled by the FVRA and the APA: the Asylum Directives must be set aside.”

Moss rejected the government’s argument that the plaintiffs didn’t have standing to bring the case, or the government’s assertion that the appointment was valid because the FVRA “also applies to individuals first appointed to the position of first assistant after the vacancy in the PAS office arises.”

“Cuccinelli’s appointment fails to comply with the FVRA for a more fundamental and clear-cut reason: He never did and never will serve in a subordinate role—that is, as an ‘assistant’—to any other USCIS official,” Moss wrote. “For this reason alone, Defendants’ contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or purpose of the FVRA.”

“…Defendants contend that Cuccinelli’s service as acting USCIS Director is lawful ‘by dint of his appointment as Principal Deputy Director.’ That argument, however, fails to confront the essential meaning of the word ‘assistant,’ which under any plausible construction comprehends a role that is, in some manner and at some time, subordinate to the principal.”

Moss found that “under that commonsense understanding of the meaning of the default provision, Cuccinelli does not qualify as a ‘first assistant’ because he was assigned the role of principal on day-one and, by design, he never has served and never will serve ‘in a subordinate capacity’ to any other official at USCIS.”

Cuccinelli, who frequently tweets, did not have an immediate reaction to the ruling. Homeland Security Department spokeswoman Heather Swift said, “We obviously disagree with the court’s opinion and are looking more closely at it.”

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Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a senior fellow specializing in terrorism analysis at the Haym Salomon Center. She is a Senior Risk Analyst for Gate 15, a private investigator and a security consultant. She is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera, BBC and SiriusXM.

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