Federal Judge Rules Cuccinelli Unlawfully Appointed to Lead Immigration Agency

Ken Cuccinelli in Nokesville, Virginia, on Nov. 5, 2013. (Win McNamee/Getty Images)

A federal judge has ruled that Ken Cuccinelli, who previously led the U.S. Citizenship and Immigration Services (USCIS), was unlawfully appointed to serve in that role.

U.S. District Judge Randolph Moss in Washington said in a ruling on Sunday that Cuccinelli’s appointment as the agency’s acting director had violated the Federal Vacancies Reform Act (FVRA), a 1998 law governing the appointment of officers to an executive agency before a permanent replacement is appointed. As a result, two policies issued by Cuccinelli have also been suspended.

“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, an Obama appointee, wrote in his opinion (pdf). “The remedy for that deficiency, moreover, is compelled by the FVRA and the [Administrative Procedure Act]: the Asylum Directives must be set aside.”

Cuccinelli, a former Virginia attorney general, was named for the role after his predecessor at USCIS, Lee Cissna, resigned in June 2019. Moss said under the USCIS’s order of succession at the time, Deputy Director Mark Koumans should have become the acting director.

But the judge said acting DHS Secretary Kevin McAleenan then created a position for Cuccinelli, giving him the title as the principal deputy director, a role that did not exist prior to Cuccinelli’s appointment. McAleenan then reorganized the agency’s structure to put Cuccinelli’s role above the deputy director, effectively allowing Cuccinelli to displace Kouman as the agency’s acting director.

“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 FVRA’s default rule under any plausible reading of the statute.”

A DHS spokesperson said in a statement to The Epoch Times that the department “obviously disagree[s] with the court’s decision and will be looking closely at the decision.”

The USCIS website currently shows Cuccinelli’s job title as “senior official performing the duties of the deputy secretary for the Department of Homeland Security.”

The case came before the federal court after a coalition of immigration and civil rights groups sued the Trump administration to challenge the implementation of the two immigration policies issued by Cuccinelli. One of the directives shortens the time for asylum seekers to prepare evidence to substantiate their fear of persecution claims. The other directive prohibits asylum seekers from obtaining a continuance except in extraordinary circumstances, according to Democracy Forward, a legal organization representing the asylum seekers.

In reaction to the ruling, Cuccinelli said on Monday on Fox and Friends that he will not leave his role as acting deputy secretary at the Department of Homeland Security.

“The succession for the deputy secretary of homeland security ties back to my official position as the principal deputy at USCIS, there’s not a problem with me at my current position,” he said. “The only issue in the case is related to being the acting director at USCIS.”

“And this ruling is really something of an outlier. This is a methodology that’s been used in the past. It’s been thought of as legal on a—pretty broadly,” he added.

An appeal is expected, Cuccinelli said, adding that the agency will take any intermediate steps necessary to avoid any challenges. Cuccinelli also added that the policies that were voided in the ruling will be “efficiently reissued” as a “precautionary measure while an appeal goes forward.”

“So it'll be business as usual until this is played all the way out,” he said.