A federal judge ruled that the Trump administration violated the law in appointing an immigration official and referred to an episode of “The Office” in his decision.
Judge Randolph D. Moss of United States District Court in Washington ruled Sunday that Kenneth Cuccinelli’s appointment as acting director of United States Citizenship and Immigration Services was illegal. The judge decided that a federal vacancies law was violated by the administration in appointing Cuccinelli and, as a result, two policies he put in place have to be nullified, The New York Times reported.
(Source: Fox News)
“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,” Moss wrote.
“But labels–without any substance–cannot satisfy the [Federal Vacancies Reform Act’s] default rule under any plausible reading of the statute,” he added, explaining how Cuccinelli’s position wasn’t eligible under the law.
— Bradley Jenkins (@bradkjenkins) March 1, 2020
“Cuccinelli’s appointment fails to comply with the F.V.R.A. 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 U.S.C.I.S. official.”
Cuccinelli, also the deputy secretary of Homeland Security, was tapped to replace L. Francis Cissna, the former director of Citizenship and Immigration Services, by the administration last June.
According to The Times:
Days after Mr. Cissna’s resignation, Mr. McAleenan created a brand-new job, principal deputy director, for Mr. Cuccinelli. That same day, Mr. McAleenan rewrote the rules of succession to make that position the next in line to lead Citizenship and Immigration Services on an acting basis. Mr. Cuccinelli then began leading the agency.
But Moss felt the position, which he thought should have been assumed by USCIS Deputy Director Mark Koumans, did not comply with the federal statute and cited “a long-running riff” from the sitcom “The Office” to elaborate.
“There may well be a difference between one who serves as ‘the assistant regional manager’ and ‘the assistant to the regional manager,’” the judge wrote. “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.”
— Steve Vladeck (@steve_vladeck) March 1, 2020
Cuccinelli told Fox News on Monday that the ruling was “something of an outlier,” adding that the administration plans to appeal
Moss ruled that the invalid position rendered Cuccinelli’s policies affecting asylum seekers’ access to counsel null.
“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,” Moss wrote. “The remedy for that deficiency, moreover, is compelled by the FVRA and the [Administrative Procedure Act]: the Asylum Directives must be set aside.”
One of his directives decreased to 24 hours the amount of time asylum-seekers had to meet with a lawyer before an interview with an asylum officer. Extensions could not be granted for the consultations as noted in another one of Cuccinelli’s policies.
The 1998 Federal Vacancies Reform Act cited by Moss held that senior government positions could be filled only if the Senate first approved the appointee.
Pro-immigration advocacy groups Democracy Forward and the Catholic Legal Immigration Network brought the lawsuit against the Trump administration on behalf of seven asylum-seekers and argued that the “directives violate federal law because they curtail asylum seekers’ statutory rights, were implemented without considering the devastating impact on asylum seekers, and were issued without any notice.”
Moss did note that he was “unconvinced” that the ruling Sunday should extend to other “asylum seekers who were processed under the defective directives.”
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