Sunday, March 1, 2020
Judge Randolph D. Moss (D.D.C.) ruled today that Ken Cuccinelli's appointment as Acting Director of U.S. Citizenship and Immigration Services violated the Federal Vacancies Reform Act of 1998 and struck two of his orders restricting certain asylum processes.
The ruling is a significant blow to the administration, USCIS, and Cuccinelli. It also puts the brakes on the then-Acting Secretary of Homeland Security's effort to side-step the FVRA and get Cuccinelli into office under the radar. (If affirmed, the ruling also forecloses any similar efforts to work around the FVRA in Homeland Security or other agencies.)
Moreover, the ruling could also affect other asylum claimants and other Cuccinelli decisions, if other cases follow. (Judge Moss was careful to limit relief to only the plaintiffs in this case, which was not a class action. But the reasoning extends to other asylum applicants and other Cuccinelli decisions in his role as acting Director.)
The case arose when certain asylum claimants challenged Cuccinelli's orders to limit the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to "one full calendar day from the date of arrival at a detention facility," and prohibited asylum officers from granting extensions to prepare for credible-fear interviews "except in the most extraordinary of circumstances." They argued, among other things, that Cuccinelli lacked authority to issue the orders, because his appointment as Acting Director was invalid under the FVRA.
The court agreed. The court noted that after the Senate-confirmed Director of the USCIS resigned, and after the Deputy Director (the Director's "first assistant") took over pursuant to the FVRA, the Secretary of Homeland Security simultaneously appointed Cuccinelli as a newly created Principal Deputy Director and revised the USCIS order of succession to designate the new Principal Deputy Director as the new "first assistant" to the Director.
The moves were designed to put Cuccinelli in the Acting Director's spot over the Deputy Director. (The FVRA specifies that when there's a vacancy in a Senate-confirmed job, the "first assistant" assumes the acting role, unless the President appoints a person under other provisions in the FVRA, not relevant here.)
But in addition to the bald effort to work around the FVRA, there was this weirdness, underscoring the fact that the Acting Secretary was trying to side-step the FVRA: the Acting Secretary specified that the order designating the Principal Deputy Director as "first assistant" "will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President."
The court held that the attempted work-around of the FVRA didn't work. In short, Cuccinelli "never did and never will serve in a subordinate role--that is, as an "assistant"--to any other USCIS official," because his appointment as Principal Deputy automatically elevated him to the Acting Director job. "For this reason alone, Defendants' contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or purpose of the FVRA."
The court thus ruled that Cuccinelli's two orders were issued without authorization and set them aside. It went on to limit relief to the plaintiffs in the case, however, and noted that the case wasn't a class action. As a result, the court vacated the plaintiffs' negative credible-fear determinations and remanded their cases to USCIS for further proceedings under the pre-order rules.