Cuccinnelli’s Appointment to Top USCIS Job Ruled Unlawful

(Bloomberg) -- President Donald Trump’s appointment of Virginia’s former attorney general as head of the immigration service violated federal law, a federal judge concluded. The ruling voids controversial policy changes that made it more difficult to get asylum in the U.S.

Ken Cuccinelli’s appointment in 2019 as acting director of U.S. Citizenship and Immigration Services, a unit within the Department of Homeland Security, ran afoul of a statute governing how federal government job vacancies are filled, U.S. District Judge Randolph Moss said in a 55-page ruling.

The move voids a directive put in place under Cuccinelli limiting the consultation time asylum seekers have with legal counsel before an initial interview to determine if they have a credible fear of persecution or torture backing up their asylum request. If applicants pass such reviews, then they can make their cases to stay in the U.S. to immigration judges.

The ruling also raises questions about other disputed policies aimed at making it harder for immigrants to get and keep jobs in the U.S.

The lawsuit was filed by the pro-immigration advocacy groups Democracy Forward and the Catholic Legal Immigration Network on behalf of an immigration legal center and seven asylum-seekers.

Moss’s ruling is an implicit reproach of Trump’s practice of only appointing “acting” heads of agencies to avoid complications attached to the removal of appointees who received Senate confirmation.

Temp Agency

Other temporary chiefs include Richard Grenell, acting director of national intelligence, and Mick Mulvaney, who’s served as acting White House chief of staff for more than a year.

USCIS officials didn’t return an email Sunday seeking comment on the ruling. Immigration activists hailed the judge’s decision as throwing a monkey wrench into Trump’s efforts to keep asylum seekers and immigrants out of the country.

“This is both a victory for the rule of law and a significant blow to the Trump administration’s xenophobic agenda,” Democracy Forward Executive Director Anne Harkavy said in a statement.

The dispute centered on a decision by Kevin McAleenan -- who at the time was the acting Secretary of Homeland Security -- to appoint Cuccinelli to a position that didn’t previously exist in the immigration service after the resignation of Senate-confirmed USCIS director Lee Cissna.

McAleenan stepped down as acting DHS chief in November. Chad Wolf now holds that role.

The agency’s second-in-command, Mark Koumans, automatically assumed the role of acting director, as prescribed by federal law governing job vacancies.

‘First Assistant’

McAleenan’s move with Cuccinelli wrongfully allowed the conservative activist to leapfrog Koumans and become the agency’s acting head, Moss concluded. Labeling the job held by Virginia’s former top lawyer as being the “first assistant” to the head of the USCIS didn’t mean he could supersede Koumans, the agency’s traditional second in command.

“Labels -- without any substance -- cannot satisfy” the law governing agency vacancies, the judge concluded.

Other policies that may be implicated by Moss’ ruling focus on making it more difficult for companies to hire and keep foreigners for high-skill jobs, such as scientist and engineer slots. Cuccinelli has touted the agency’s efforts to demand more information of employers seeking to hire overseas.

The case is LM-M v. Cuccinelli, 19-cv-2672, U.S District Court for the District of Columbia (Washington).

To contact the reporters on this story: Jef Feeley in Wilmington, Delaware at jfeeley@bloomberg.net;Hailey Waller in New York at hwaller@bloomberg.net

To contact the editors responsible for this story: James Ludden at jludden@bloomberg.net, Ros Krasny, Matthew G. Miller

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