Cuccinelli’s Illegal Appointment Voids Trump Admin’s Extraordinary Agreement Requiring New Admin to Consult with AZ
AZ’s Lawsuit Part of Broader Effort to Defend Unlawful Trump-Era Policies
PHOENIX, Arizona — Late Thursday, on behalf of five immigration groups, Democracy Forward filed an amicus brief opposing Arizona and Montana’s challenge to the Biden administration’s immigration enforcement priorities guidance. The brief details why Ken Cuccinelli’s illegal appointment as Acting Deputy Secretary of Homeland Security invalidates an extraordinary agreement he signed with Arizona purporting to give Arizona advance consultation rights on immigration policy changes.
The American Immigration Lawyers Association (AILA), the Catholic Legal Immigration Network, Inc. (CLINIC), the National Immigrant Justice Center (NIJC), the National Immigration Law Center (NILC), and the Refugee and Immigrant Center for Education and Legal Services (RAICES), filed the brief with representation from Democracy Forward.
The lawsuit — filed by Arizona Attorney General Mark Brnovich on February 3 and joined by Montana on March 8 — claims that the Biden administration’s revised approach to enforcing immigration law violates an agreement between Arizona and DHS that was signed in the final weeks of the Trump administration. The extraordinary and unlawful agreement was signed by Ken Cuccinelli and requires DHS to provide Arizona “180 days’ written notice ... and an opportunity to consult and comment” on the agency’s changes to immigration policy. Cuccinelli signed similar agreements with other jurisdictions, including Texas.
Upon filing the brief, the groups issued the following statement:
“As seven federal courts and the Government Accountability Office have determined, Ken Cuccinelli’s appointment at DHS was illegal. He therefore lacked the authority to execute the extraordinary agreement that Trump’s Department of Homeland Security inked with Arizona in an attempt to tie the incoming administration’s hands. We urge the court to reject Arizona’s reliance on this unlawful agreement.”
As the brief states: “That Cuccinelli purported to execute a contract on behalf of the federal government, which he had no power to bind, would be bad enough. But Cuccinelli certainly did not have the authority to contract away the government’s sovereign powers over immigration law in a brazen effort to tie the hands of an incoming administration.”
The agreement that Arizona’s lawsuit relies on is invalid because Cuccinelli’s appointment was illegal — one of many illegal appointments at Trump’s DHS. In short:
- When Secretary Kirstjen Nielsen resigned in April 2019, Kevin McAleenan unlawfully assumed the role of Acting Secretary.
- McAleenan, therefore, lacked the authority to amend the succession order to install Chad Wolf as Acting Secretary months later, and Wolf, in turn, lacked the authority to name Cuccinelli to his position.
Seven courts and the Government Accountability Office have concluded that the officials who installed Cuccinelli in his roles at DHS themselves lacked the lawful authority to do so. A lawsuit brought by Democracy Forward, CLINIC, and Debevoise & Plimpton, LLP on behalf of RAICES and seven asylum seekers prompted a federal court to rule in March 2020 that Cuccinelli was illegally appointed to his previous post as Acting Director of U.S. Citizenship and Immigration Services. The ruling was the first to hold that a Trump administration official was unlawfully appointed.
Arizona’s lawsuit was filed on Feb. 3 in the U.S. District Court for the District of Arizona. The groups’ amicus brief was filed on May 6. Read it in full here.
Democracy Forward is a nonprofit legal organization that represents organizations, individuals, and municipalities in impact litigation to keep corruption out of policymaking.
American Immigration Lawyers Association (AILA), founded in 1946, is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
The Catholic Legal Immigration Network, Inc., or CLINIC, advocates for humane and just immigration policy. Its network of nonprofit immigration programs — more than 370 affiliates in 49 states and the District of Columbia — is the largest in the nation. CLINIC provides substantive legal and program management training and resources, as well as advocacy support at state, local and national levels.
The National Immigrant Justice Center is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation, and public education.
Founded in 1979, the National Immigration Law Center is the leading advocacy organization in the U.S. exclusively dedicated to defending and advancing the rights and opportunities of low-income immigrants and their loved ones. NILC’s mission is grounded in the belief that everyone living in the U.S. — regardless of race, gender/gender identity, immigration status, or economic status — should have equal access to justice, resources, and educational and economic opportunities that enable them to achieve their full human potential.
RAICES is a 501(c)(3) nonprofit organization that promotes justice by providing free and low-cost legal services to underserved immigrant children, families, and refugees. With legal services, social programs, bond assistance, and an advocacy team focused on changing the narrative around immigration in this country, RAICES is operating on the national frontlines of the fight for immigration rights.
Catholic Legal Immigration Network, Inc.
Tara Tidwell Cullen
National Immigration Law Center