WASHINGTON — A federal judge ruled on Sunday that Kenneth Cuccinelli was unlawfully appointed to lead U.S. Citizenship and Immigration Services and that two policies he put in place that limited asylum-seekers’ access to counsel should be nullified.
The judge, Randolph D. Moss of U.S. District Court in Washington, said the Trump administration violated a federal law that stipulates who can fill vacant leadership positions at federal agencies when Cuccinelli was tapped in June to be the acting director of the agency that oversees legal immigration.
One of the policies in question was a directive that reduced the time — from 48 hours to 24 — that detained migrants have to consult with lawyers before an interview with an asylum officer. The other policy prohibited asylum officers from granting migrants an extension to prepare for that interview, which is used to assess their claim of fear of returning to their home country.
The statute related to Cuccinelli’s appointment is the Federal Vacancies Reform Act, which says an official temporarily filling a Cabinet-level position before Senate confirmation must be next in the line of succession by serving as the “first assistant” or must have worked as a senior official in the agency for at least 90 days. Cuccinelli, the former Virginia attorney general who aggressively defended President Donald Trump’s immigration agenda on television in the months before his appointment, did not meet either of those requirements, according to the ruling.
“Cuccinelli’s appointment fails to comply with the FVRA for a more fundamental and clear-cut reason,” Moss said in the ruling. “He never did and never will serve in a subordinate role — that is, as an ‘assistant’ — to any other USCIS official.”
Since he was tapped to oversee legal immigration, Cuccinelli has been elevated to acting deputy secretary of homeland security, the No. 2 position, while simultaneously leading Citizenship and Immigration Services. It is unclear how the ruling will affect Cuccinelli’s jurisdiction over the immigration agency.
A Department of Homeland Security official said the agency disputed the court decision and would examine it closely. The Justice Department did not respond to a request for comment.
The court ruling will not void the “public charge” rule, which imposes a more strict wealth test on green card applicants and is expected to drastically curtail legal immigration to the United States, according to immigration experts. That policy was signed by the former acting secretary of homeland security, Kevin K. McAleenan.
But Nitin Shah, senior counsel at Democracy Forward, one of the plaintiffs in the case, said lawyers would examine how other policies could be affected.
“It raises serious questions about the legality of a number of policies that Cuccinelli has enacted and may yet enact, and we and others will be taking a closer look at that in the coming days,” Shah said. He called the voiding of the asylum directives “a big blow for the Trump administration’s racist agenda.”
The administration initially considered having Cuccinelli serve as an “immigration czar” to coordinate policy across agencies. He was then picked to replace L. Francis Cissna, the former director of Citizenship and Immigration Services, who was long seen as a bureaucratic barrier by some White House advisers.
Days after Cissna’s resignation, McAleenan created a brand-new job, principal deputy director, for Cuccinelli. That same day, McAleenan rewrote the rules of succession to make that position the next in line to lead Citizenship and Immigration Services on an acting basis. Cuccinelli then began leading the agency.
“Everyone understood that the way they tried to install Cuccinelli was a stunt,” said Stephen I. Vladeck, a law professor at the University of Texas whose work includes studying the Vacancies Act. “The top line is that the Trump administration gets called out for its own hubris.”
Under Trump, a department created after the Sept. 11 attacks to safeguard the United States has been turned into a carousel of temporary leaders lacking Senate confirmation. Mark A. Morgan served as the acting director of Immigration and Customs Enforcement before replacing John Sanders as the acting commissioner of Customs and Border Protection. Sanders was also working in an acting position. Matthew T. Albence replaced Morgan as the acting director of ICE.
The secretary of homeland security, Chad Wolf, is serving in an acting capacity. His predecessor, McAleenan, was also never nominated before he resigned in October.
“You need a scorecard to tell the players,” Vladeck said.
Trump, who relies on such acting appointees throughout his government, has said he sees an advantage in keeping officials in the supposedly temporary roles.
“I like ‘acting’ because I can move so quickly,” Trump told CBS’s “Face the Nation” last year, adding, “It gives me more flexibility.”
Almost immediately after joining the Homeland Security Department, Cuccinelli positioned himself as the unofficial spokesman of all aspects of Trump’s immigration agenda, at times rubbing senior officials the wrong way with his contentious public statements.
He is also the department’s representative on the task force assembled to respond to the coronavirus outbreak. But of all the hats Cuccinelli wears, Moss found that the job McAleenan created for him did not satisfy the federal statute.
In the ruling, he invoked “a long-running riff” in the popular sitcom “The Office” to explain why.
“There may well be a difference between one who serves as ‘the assistant regional manager’ and ‘the assistant to the regional manager,’” Moss said. “But either way, that person is, at best, second in command. Here, the acting secretary created a position that is second in command in name only.”