WASHINGTON (CN) — A federal judge told the Justice Department on Tuesday that its case for the legitimacy of President Donald Trump appointing the acting director of U.S. Citizenship and Immigration Services eviscerates a law Congress passed to ensure top agency officials are Senate-confirmed.
U.S. District Judge Randolph Moss in Washington, D.C., drilled the government on the sequence of events that led to Ken Cuccinelli’s appointment, under fire from an immigration legal service nonprofit arguing Trump violated the Vacancies Reform Act.
The law requires the first assistant, or deputy, to an agency director take over the top leadership role in the event the director steps down. But after Senate-confirmed USCIS Director Lee Francis Cissna resigned in June, Trump created a new role for Cuccinelli: principal deputy director.
Trump then installed Cuccinelli as acting director of the agency — responsible for executing the president’s immigration policies entangled in legal battles across the country — and leap-frogged the deputy director of USCIS, a career official with three decades of service in both the Departments of Homeland Security and State.
Tuesday’s hearing featured a humorous twist with Moss, as a former assistant attorney general overseeing the Justice Department’s Office of Legal Counsel, demonstrating a deep grasp of the ins and outs of the Vacancies Reform Act.
The Justice Department attorney quipped that the judge, a Yale graduate who once clerked for Supreme Court Justice John Paul Stevens, likely had the law memorized.
But Moss slammed the government’s claim that Trump in no way violated the legal framework set by Congress in 1998, saying lawmakers had no intention to “loosen things up” for the president to appoint acting officials.
“The purpose of the act was just the opposite of that,” Moss said.
The Barack Obama-appointed judge said the Vacancies Reform Act was a “waste of an effort,” “meaningless” and “moot” if Trump could create a new deputy role to install an acting director.
More than two hours into the hearing, Moss repeatedly noted that Cuccinelli had no leadership role in USCIS before Trump appointed him as acting director, adding “he never ever served as anybody’s assistant.”
Cuccinelli’s bio on the USCIS website, a few short paragraphs, notes the acting director served as Virginia’s attorney general from 2010 to 2014 and is “a proud graduate of Gonzaga High School, located just blocks from USCIS headquarters.”
Assistant U.S. Attorney James Burnham argued that Congress did not intend for the law to “become a set of handcuffs for the executive” and noted that the Trump administration has many agency directors in an acting capacity.
Moss clapped back: “You also have a president who says he prefers directors who are acting because it’s easier to get at.”
The hearing Tuesday kicked off with arguments over Cuccinelli’s asylum directives, which the Refugee and Immigrant Center for Education and Legal Services claims tear away the right to meaningful legal counsel from asylum seekers.
The legal rights organization argued for Moss to block the directives and rule Cuccinelli’s appointment is unlawful.
Back in July, the acting director slashed the time for immigrants to consult with lawyers ahead of a credible fear interview – which determines if they can remain in the U.S. while their claim for asylum is processed – from the 48-hour minimum down to a single calendar day from the time of arrival at a detention center.
He also cut back on the ability of asylum seekers to request a continuance if they need more time to consult with or retain a lawyer and stopped in-person legal orientation for particularly vulnerable asylum seekers to understand their legal rights in the process, including those with disabilities.
John Lewis, an attorney with Democracy Forward Foundation arguing for the asylum seeking plaintiffs, said most immigrants cannot even make contact with a lawyer in 24 hours.
Border officials often curtail meetings between immigrants and lawyers, Lewis added, leaving just one hour to discuss how to present often traumatizing details on what caused asylum seekers to flee and how to make the case for why they will be persecuted if returned to their home country.
“[USCIS] didn’t consider the dark side of the policy when it was enacted,” Lewis argued.
Assistant U.S. Attorney Archith Ramkumar told Moss the directives were in response to the crisis at the southern border, a term the judge called “pretty vague.”
“That doesn’t mean anything to me,” Moss said.
Ramkumar pushed on, saying USCIS had issued a new form with a “more streamlined” guideline on what is required to pass a credible fear interview.
The argument fell as flat as the first with Moss, who said the government cannot take the right to meaningful legal counsel away from asylum seekers in exchange for the newly formatted information.
But the Justice Department argued Moss lacks jurisdiction to rule on the case. Ramkumar also told the judge a recent ruling in the same court that the Trump administration could not deport immigrants picked up without papers to prove legal residency is under appeal, and thus not binding in the case Moss now weighs.
Tuesday’s hearing was centered on whether the judge should stay removal orders for the asylum seeking plaintiffs and block the USCIS policy changes nationwide.
Moss said he was aware of the debate over judges blocking Trump immigration policies nationwide — “I’m puzzling a little bit over what my authority would be to grant relief for people who are not before the court” — then later opted to consider Tuesday’s arguments to issue a ruling on summary judgment.
Prefacing that speed is key in the case, Moss instructed the immigration rights organizations to make final arguments in court filings by Dec. 24 as to why he should rule the asylum directive and Cuccinelli’s appointment are unlawful.
Moss reiterated a request at the close of the hearing that the Justice Department look into whether Cuccinelli’s asylum directives were directly aimed at reducing the number of asylum seekers who qualify.
Lewis had told the judge that “the negatives have gone way up,” referring to the number of asylum claims rejected since the change to USCIS policy. Ramkumar had dodged the question by saying there was “no evidence of animus.”
“I would like to know,” the judge said.
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