Judge Rules Immigration Official Was Illegally Appointed

(CN) – Immigrant advocates on Monday praised a federal judge’s order setting aside asylum directives made by top immigration official Ken Cuccinelli, whose appointment by President Donald Trump was deemed unlawful by the court.

The groups that brought the case last September alleged the Trump administration illegally appointed Cuccinelli to serve as acting director of U.S. Citizenship and Immigration Services and that as a result, immigration directives he issued are invalid.

A federal judge ruled Sunday that Ken Cuccinelli was unlawfully appointed as acting director of U.S. Citizenship and Immigration Services. (AP Photo/Jose Luis Magana, File)

U.S. District Judge Randolph Moss in Washington, D.C., agreed in a 55-page opinion issued Sunday. He found that Cuccinelli’s directives, including limiting the amount of time asylum seekers have to prepare for screening interviews, must be set aside.

“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,” the Barack Obama appointee wrote.

A group of asylum seekers as well as Democracy Forward, the Catholic Legal Immigration Network, Inc., Proskauer Rose LLP, and RAICES —a nonprofit organization that provides legal services to refugees— sued the Trump administration over the immigration rules and the legality of Cuccinelli’s appointment.

Democracy Forward Executive Director Anne Harkavy applauded Moss’ decision in a statement Monday.

“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,” Harkavy said. “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.”

Cuccinelli had urged the court to uphold the directives he implemented, which critics say strip legal protections from immigrants who seek refuge in the U.S.

But Democracy Forward said those directives “make it harder for asylum seekers to demonstrate that they have a ‘credible fear’ of returning to their home country, including by unlawfully denying them adequate time to consult with an attorney or other third parties prior to their ‘credible fear’ interview.”

Prior to appointing a principal officer of the United States, the appointments clause of Article II of the Constitution requires the president to get “the advice and consent of the Senate.”

In addition, the Federal Vacancies Reform Act outlines who is eligible to be appointed acting head of federal agencies – specifically, the “first assistant” in that office, someone already serving in a different Senate-confirmed position or another top official in the same agency who has been there for at least 90 days.

Moss found that Cuccinelli’s appointment violated that 1998 law.

“Defendants’ reading of the FVRA would decimate this carefully crafted framework,” the judge wrote. “The president would be relieved of responsibility and accountability for selecting acting officials, and the universe of those eligible to serve in an acting capacity would be vastly expanded.”

At a hearing in December, Moss grilled a Justice Department attorney over Cuccinelli’s appointment, saying Congress 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.

Democracy Forward had argued that after Senate Majority Leader Mitch McConnell, R-Ky., said he would block Cuccinelli’s confirmation, the White House “did an end run around the law with the extraordinary step of creating a new office for Cuccinelli in order to install him as the acting head of USCIS.”

Cuccinelli, however, pushed back on the court’s order and argued that his appointment was lawful and his directives should stay.

“You can expect an appeal, and we’ll take intermediate steps to avoid any challenges. But it doesn’t affect anything we’re doing going forward,” he told Fox News in an interview Monday.

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