A federal judge ruling that the installment last year of Ken Cuccinelli as head of U.S. Citizenship and Immigration Services was unlawful has thrown into flux two directives rolled out in the five months he held that position. It also has the potential to upend more.
Cuccinelli was appointed in June 2019 to a newly created position of “principal deputy director” of USCIS after the resignation of the agency's previous head, Lee Francis Cissna. But Cuccinelli “lacked authority” to perform that role, wrote U.S. District Court Judge Randolph Moss in his ruling Sunday.
Since November, Cuccinelli also has been serving as acting deputy secretary of Homeland Security, another position that did not previously exist.
Moss' ruling comes in a lawsuit that specifically challenged three of Cuccinelli’s asylum policies, two of which the judge said were “invalid and without legal force or effect” because Cuccinelli's appointment, itself, was invalid. One of the policies cut in half the time that asylum seekers held in detention at the border had to consult with attorneys about their case. The second policy stopped asylum seekers from seeking continuances that would provide them additional time to prepare for interviews establishing they had "credible fear" to flee their country of origin. Both policies were implemented in a July directive.
The court did not rule on the third policy, regarding the termination of in-person legal training at a family detention center in Dilley, Texas, because there was no apparent written directive making that change.
The Department of Homeland Security on Monday said it is reviewing the action.
"We obviously disagree with the court’s decision and will be looking closely at the decision," it said in a statement.
While Sunday’s ruling only affects these two policies in the immediate term, it could deactivate other guidance, directives, policy documents and rules that Cuccinelli signed off “by extension,” said John Lewis, counsel at Democracy Now, the organization that spearheaded the lawsuit.
“Very much, this could have broader implications for USCIS,” Lewis said, mentioning that ongoing lawsuits, such as the one challenging Cuccinelli’s “public charge” rule, cite similar legal objections. He said more legal complaints may not surface.
USCIS did not comment on CQ Roll Call’s questions regarding the implication of the federal ruling. But employees were sent an email late Sunday with instructions to set aside the July 2 memo in which these two policies were ordered, an agency source told CQ Roll Call.
On Monday, Cuccinelli promised a prompt appeal during a Fox News appearance.
“You can expect to see those reissued and revalidated,” he said about the policies Moss suspended Sunday. “And that’s just a precautionary measure, while the appeal goes forward.”
But according to experts, those moves also could be challenged in court on similar grounds.
“It will work until someone else files a lawsuit and a judge says it doesn't work,” Theresa Cardinal Brown, immigration and cross-border policy director at the Bipartisan Policy Center, wrote on Twitter.
In Sunday’s ruling, Moss cited an episode from the television sitcom, "The Office," and reasoned that Cuccinelli did not meet the required legal criteria to be deemed a “first assistant” and take on the mantle at USCIS in accordance with statutory law.
“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, that person is, at best, second in command,” he wrote in a footnote.
“Here, the acting Secretary created a position that is second in command in name only,” Moss wrote, arguing that because Cuccinelli was appointed to the “principal” role on day one, he never actually served in a subordinate capacity to any official at USCIS.
Sarah Pierce, a policy analyst at the Migration Policy Institute, told CQ Roll Call that if Moss' ruling stands, it would force “the administration to be a little bit more straightforward about who they're putting in these positions."
“With Cuccinelli, they were extremely creative about creating a new position for him and then revising USCIS's order of succession so that he would be overseeing the entire organization ... but the judge didn't buy that,” she said.
Camila DeChalus contributed to this report.