A federal judge said Sunday that Kenneth Cuccinelli was unlawfully appointed as acting director of United States Citizenship and Immigration Services because his actual position wasn’t eligible under the law.
“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,” U.S. District Judge Randolph Moss wrote. “But labels–without any substance–cannot satisfy the [Federal Vacancies Reform Act’s] default rule under any plausible reading of the statute.”
The judge went as far as to explicitly reference the TV show The Office in a footnote: “…there may well be a difference between one who serves as ‘the assistant regional manager’ and ‘the assistant to the regional manager.’ But either way, the person is, at best, second in command. Here, the acting Secretary created a position that is second in command in name only.”
BREAKING: Federal judge declares that @HomelandKen was unlawfully installed as Acting Director of @USCIS. Policies he authorized are void. pic.twitter.com/Nb2Q7gBLlD
— Bradley Jenkins (@bradkjenkins) March 1, 2020
In a nutshell, Judge Moss holds that Cuccinelli was not legally the “first assistant” to the Director of USCIS, and so could not lawfully be named Acting Director of USCIS under the Federal Vacancies Reform Act: pic.twitter.com/uxH4rqzqYg
— Steve Vladeck (@steve_vladeck) March 1, 2020
“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.”
As acting director, Cuccinelli made it harder for people to pursue asylum in the United States.
Federal records viewed by Law&Crime show that both sides of the case have until March 13 to file a joint status report proposing the “next steps for this litigation, including whether the Court should enter final judgment.”
This tweet aged well. https://t.co/XdoYY8rWgK pic.twitter.com/nbwaMTeBkk
— Steve Vladeck (@steve_vladeck) March 1, 2020
[Screengrab of Cuccinelli via ABC News]
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