A federal judge in Washington D.C. ruled Sunday that acting director of United States Citizenship and Immigration Services Ken Cuccinelli was unlawfully appointed to his position.
The ruling added that a policy directive under his tenure that gives asylum seekers less time to consult with legal counsel prior to their “credible fear” interview with a USCIS officer is now void.
Judge Randolph Moss wrote in the ruling that the Federal Vacancies Reform Act — which gives the President authority to choose certain senior officials to fill Cabinet and agency positions — factored into his decision.
Cuccinelli — who was appointed by Homeland Secretary Kevin McAleenan last June to lead USCIS after deputy director Mark Koumans automatically became the acting director under the Federal Vacancies Reform Act —initially served as “principal deputy director” of USCIS, a title that was previously non-existent. Later that day, McAleenan designated Cuccinelli’s new position as “first assistant,” which gave Cuccinelli permission to overtake Koumans to become acting director.
Moss wrote in the ruling Sunday that Cuccinelli’s newly created title did not satisfy the necessary legal standard and lacked “any substance.”
“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.
“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. But labels — without any substance — cannot satisfy the FVRA’s default rule under any plausible reading of the statute.”
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