A federal judge has ruled that Ken Cuccinelli was unlawfully appointed to lead US Citizenship and Immigration Services (USCIS) and as a result lacked the authority to give asylum seekers less time to prepare for initial screening interviews.
Cuccinelli, a former Virginia attorney general and an immigration hardliner, was named to a new position of “principal deputy director” in June, which made him acting director because Lee Francis Cissna had just resigned. The agency grants green cards and other visas and oversees asylum officers.
The US district judge Randolph Moss in Washington found Cuccinelli’s appointment violated the Federal Vacancies Reform Act, a 1998 law governing who is eligible to lead federal agencies in an acting capacity.
In an interview with Fox News on Monday, Cuccinelli said Donald Trump’s administration would appeal the ruling and his agency would take steps to try to prevent the invalidation of other decisions.
The ruling, issued on Sunday, was at odds with Trump’s penchant for temporary appointments. At the Department of Homeland Security, Chad Wolf is acting secretary. The heads of Customs and Border Protection (CBP), Immigration and Customs Enforcement (Ice) and Citizenship and Immigration Services are also in acting roles.
The judge wrote that Cuccinelli didn’t qualify for exceptions for officials who won Senate approval for other positions or spent 90 days in the previous year at the agency.
The administration’s reading of the law “would decimate this carefully crafted framework”, Moss wrote. “The president would be relieved of responsibility and accountability for selecting acting officials, and the universe of those eligible to serve in an acting capacity would be vastly expanded.”
Moss, an Obama appointee, set aside a Cuccinelli directive to give asylum seekers less time to consult attorneys before an initial screening interview. But his decision applies only to the five Hondurans who sued. He did not address other Cuccinelli actions.
The asylum directive gives seekers at least one calendar day to prepare for the screening interview, instead of 72 hours for families and generally 48 hours for single adults. Extensions are granted only “in the most extraordinary circumstances”, such as a serious illness or mental or physical disability.
The directive is a foundation for policies aimed at quickly completing the screening, known as a “credible fear interview”, without leaving CBP custody.
Department of Homeland Security spokeswoman Heather Swift said: “We obviously disagree with the court’s opinion and are looking more closely at it.”
Cuccinelli is acting deputy homeland security secretary, the No 2 position. Joseph Edlow, a longtime congressional aide who joined Citizenship and Immigration Services in July, was named last month to run the agency’s day-to-day operations.
