Judge rules Cuccinelli illegally appointed to lead USCIS, protections for asylum seekers must be reinstated

WASHINGTON — In a case brought by CLINIC and partners, a federal court ruled March 1 that the Trump administration illegally appointed Ken Cuccinelli to serve as acting director of U.S. Citizenship and Immigration Services. As a result, the court concluded that Cuccinelli “lacked authority” to perform the exclusive functions of the director. The court further voided as “invalid and without legal force or effect” two immigration directives Cuccinelli issued that eviscerate important legal protections for asylum seekers.

The legal blow was delivered to the Trump administration as a result of a lawsuit brought by CLINIC, Democracy Forward, RAICES, and Debevoise & Plimpton LLP., on behalf of RAICES and individual asylum seekers. The ruling sets aside the removal orders and negative credible fear determinations for the asylum seekers in the case, meaning that they will have another chance to have their claims heard.

The court’s conclusion also raises serious questions about the legality of removal orders issued to other asylum seekers under the same directives, and other actions Cuccinelli has undertaken.
“This ruling is a big win that confirms Ken Cuccinelli’s installation and service as acting director of USCIS was unlawful. This is both a victory for the rule of law and a significant blow to the Trump administration's xenophobic agenda,” said Democracy Forward Executive Director Anne Harkavy. “We are proud to share this legal victory with the brave asylum seekers who brought the Trump administration to court to ensure that the United States stays true to its tradition of providing a haven for those fleeing persecution and seeking asylum in the U.S.”
The court specifically voided as “defective” Cuccinelli’s anti-immigrant policies which:

  • Cut in half, or more, the time for asylum seekers to consult with a lawyer and prepare evidence to substantiate their fear of persecution — which can leave them with just a few hours, while detained, to prepare for an interview with potential life or death consequences; and 
  • Prohibited asylum seekers from obtaining a continuance except in extraordinary circumstances, such as being unconscious. Under Cuccinelli’s directives, continuances were no longer granted when additional time was needed to prepare for the interview or overcome language barriers.

“This administration has done everything it can to undermine protection for vulnerable asylum seekers,” said Bradley Jenkins, federal litigation attorney for CLINIC. “We are grateful that today the District Court restrained the lawless behavior of USCIS in this case, and that our plaintiffs will have an opportunity to have access to a fair credible fear interview process.”

RAICES Litigation Director Manoj Govindaiah said: “We applaud this ruling finding Ken Cuccinelli was unlawfully appointed to his former role at USCIS. The court’s strong rebuke sends a powerful message to the administration that it cannot escape the lawful process for appointments. We are grateful that our brave plaintiffs will have an opportunity to establish their eligibility for asylum in a manner that follows the law, and that the court reinforced our nation’s tradition as a country that welcomes immigrants.”
The court agreed with the plaintiffs that the Trump administration made an unlawful end-run around the Federal Vacancies Reform Act by taking the extraordinary and unprecedented step of creating a new office for Cuccinelli in order to install him as the acting head of USCIS. The court found that “the structure and purpose of the FVRA further confirm that Cuccinelli was not lawfully designated to serve…”