Trump's habit of appointing "acting" agency directors has come back to bite him
President Trump has shown a penchant for appointing people to high government positions through temporary acting roles. Just look at the heads of U.S. Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services. The hammer came down on USCIS, though, after a federal judge ruled that Ken Cuccinelli's appointment as one of Trump's top immigration officials was unlawful, invalidating a number of his policies.
Cuccinelli became the USCIS's "principal deputy director" in June after the agency's former acting director Lee Francis Cissna resigned. This put him in charge of the USCIS, which "administers the nation's lawful immigration system", according to the DHS overview.
Last year, several immigration advocates filed a lawsuit on behalf of five asylum seekers after Cuccinelli issued directives drastically cutting the time asylum seekers had to prepare for a screening interview. One of the organizations, Democracy Forward, argued, "The administration’s unlawful asylum directives are designed to diminish the likelihood of success for these asylum seekers."
It was this case that made the court look closely at Cuccinelli's appointment. In a 55-page ruling, U.S. District Judge Randolph Moss said that the Trump administration violated the Federal Vacancies Reform Act, a 1998 law dictating who can take positions in an acting capacity, in naming Cuccinelli to the post.
The judge wrote that then-acting head of DHS, Kevin McAleenan, "appointed Cuccinelli 'to serve as the principal deputy director of [USCIS],' a position that did not exist prior to Cuccinelli's appointment," and then changed the order of succession. Doing so let Cuccinelli "leapfrog" the deputy director to become the head of the agency.
"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," Democracy Forward Executive Director Anne Harkavy said in a statement.
Moss's ruling doesn't do away with all of Cuccinelli's directives. He really only made a decision regarding the Honduran asylum seekers involved in the lawsuit. The two women and three children involved in the case no longer face expedited removal "until a legally sufficient interview occurs," per the ruling.
Still, this is an important victory in the fight against the administration's xenophobic policies. Cuccinelli and his unlawful appointment is just one part of the problem. For example, the Trump administration turned hundreds of thousands of asylum seekers onto the streets with no resources, established a policy that sent thousands of children to wait indefinitely in Mexico, and outright failed to accept any refugees last October.
"This administration has done everything it can to undermine protection for vulnerable asylum seekers,” Bradley Jenkins, a federal litigation attorney for Catholic Legal Immigration Network, Inc., said in a statement. “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."
Of course, the court's decision won't go unchallenged. During a Monday interview with Fox News, Cuccinelli said the ruling "is really something of an outlier," and that the administration would appeal it. Department of Homeland Security spokeswoman Heather Swift told The Guardian, "We obviously disagree with the court's opinion and are looking more closely at it."