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Acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli speaks about immigration policy at the White House during a briefing August 12, 2019 in Washington, D.C.

Acting Director of U.S. Citizenship and Immigration Services Ken Cuccinelli speaks about immigration policy at the White House during a briefing August 12, 2019 in Washington, D.C. (Photo: Win McNamee/Getty Images)

In Blow to Administration's "Xenophobic Agenda," Federal Judge Says Cuccinelli Unlawfully Installed as Immigration Agency Head

The ruling was heralded as "a major win for immigrants and asylum-seekers."

Andrea Germanos

A federal judge ruled Sunday that immigration hard-liner Ken Cuccinelli was unlawfully appointed Acting Director of U.S. Citizenship and Immigration Services (USCIS) by the Trump administration and voided two of his anti-immigrant directives.

"This is major news," progressive group Bend the Arc said Sunday, adding that the ruling represents "a major win for immigrants and asylum-seekers."

Washington, D.C.-based U.S. District Judge Randolph Moss wrote in his decision (pdf) that the appointment violated the Federal Vacancies Reform Act. The administration's interpretation of the 1998 law, wrote Moss, "would decimate this carefully crafted framework."

Cuccinelli, an anti-science former Virginia attorney general, took over as USCIS in June with the official title of "principal deputy director," circumnavigating the existing deputy director.

As Politico reported,

Because Cuccinelli's USCIS position was designated initially as "first assistant" to the USCIS director, the Trump administration reasoned that Cuccinelli could become acting chief under a provision of the 1998 Federal Vacancies Reform Act. But Moss wrote that Cuccinelli's appointment did not comply with the FVRA because "he never did and never will serve in a subordinate role—that is, as an 'assistant'—to any other USCIS official." Rather, Cuccinelli was "assigned the role of principal on day-one," Moss wrote.

Moss, in his ruling, explained further how the administration's maneuvers with the appointment just don't pass legal muster:

[E]ven under defendants' reading of the statute, Cuccinelli does not hold an office that was or that ever will serve as the "first assistant" to the office of the USCIS Director. The office of Principal Deputy Director was created after the vacancy in the office of the director arose; that office was nominally designated as the office of the "first assistant" to the director after the vacancy arose; and it will cease to exist as the office of the "first assistant" as soon as the PAS [an office requiring presidential appointment and Senate confirmation] vacancy is filled. Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security's order of succession may designate the office of the Principal Deputy Director as the "first assistant" to the director. But labels—without any substance—cannot satisfy the FVRA's default rule under any plausible reading of the statute.

The federal judge added in a footnote a reference to Dwight Schrute, the fictional character from the sitcom "The Office."

Footnote from page 35 of the March 1, 2020 ruling from U.S. District Judge Randolph Moss in Washington

The ruling voids the directives that shortened time for asylum-seekers to prepare for their credible-fear interviews and barred asylum-seekers from asking for extensions on those interviews except under "the most extraordinary of circumstances."

The immigrant rights groups that brought forth the legal challenge celebrated the ruling.

"This ruling is a big win that confirms Ken Cuccinelli's installation and service as acting director of USCIS was unlawful. This is both a victory for the rule of law and a significant blow to the Trump administration's xenophobic agenda," said Democracy Forward executive director Anne Harkavy.

"We are proud to share this legal victory with the brave asylum seekers who brought the Trump administration to court to ensure that the United States stays true to its tradition of providing a haven for those fleeing persecution and seeking asylum in the U.S.," she added.


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