D.C. District Judge Finds Cuccinelli Designated USCIS Director in Violation of Law

Only applies to plaintiffs in case before the D.C. District Court

By Andrew R. Arthur on March 3, 2020
  • A federal district court judge held that Ken Cuccinelli's designation as director of USCIS violated federal law, and invalidated two directives relating to expedited-removal proceedings that Cuccinelli had implemented. The court's order only applies to the five individual plaintiffs in that suit.
  • The court did not disturb a third, unwritten directive that ended in-person legal orientations for aliens in expedited-removal proceedings.
  • Cuccinelli has stated that the invalidated directives will be reissued, and that the administration will appeal the court's order.

In a March 1, 2020, memorandum opinion and order, Judge Randolph D. Moss of the U.S. District Court for the District of Columbia held that the designation of Ken Cuccinelli to serve as the acting director of U.S. Citizenship and Immigration Services (USCIS) violated the Federal Vacancies Reform Act of 1998 (FVRA). He accordingly held that two asylum directives that were issued when Cuccinelli served in that position, which related to the expedited-removal process, were invalid and must be set aside. While the Department of Justice will reportedly appeal that order, the full ramifications of it are unclear.

By way of background, on June 10, 2019, then-Department of Homeland Security (DHS) Acting Secretary Kevin McAleenan announced that Cuccinelli had been appointed to head USCIS, following the departure of former USCIS Director Francis Cissna. Subsequently, on November 13, 2019, Cuccinelli was named acting deputy secretary of DHS. The Washington Post reported on December 13, 2019, however, that Cuccinelli had returned as the acting head of USCIS, as well.

As Judge Moss explained:

On July 2, 2019, Cuccinelli sent the acting Secretary of Homeland Security a memorandum notifying him that, "effective July 8, 2019, USCIS [1] is reducing the credible fear ... consultation period to one full calendar day from the date of arrival at the detention facility ... and [2] will deny requests for extensions, as unreasonably delaying the process, except in the most extraordinary circumstances."


On July 8, 2019, USCIS updated its "Credible Fear Procedures Manual" to reflect the policy changes announced in the memorandum. ... The updated manual notes that it is now the policy of "the Asylum Program to allow a minimum of one full calendar day to transpire between the arrival of an alien at a detention site or receipt of initial M-444 (whichever is later) and any credible[-]fear interview." ... It further states that "[i]f USCIS is prepared to proceed with the interview after the consultation period has passed, asylum offices normally will deny requests for extensions of the consultation period, ... except in extraordinary circumstances." ... Finally, the updated manual notes that "[e]xtraordinary circumstances may include, but are not limited to, serious illness or mental or physical disability of the alien, a member of the alien's immediate family, or the alien's consultant, and facility issues that prevent the alien from contacting a consultant."

As the regulation governing credible-fear proceedings states, an officer referring an alien for a credible-fear interview must provide that alien with the Form M-444, "Information About Credible Fear Interview", which explains the credible-fear process, the alien's rights in that process, and the consequences of the alien's failure to establish credible fear.

The court referred to the first directive as the "the reduced-time-to consult" directive, and the second as the "prohibition-on-extensions" directive.

A third change that Cuccinelli reportedly implemented was the cancellation of "an oral, in-person legal orientation, which allowed asylum seekers to ask questions about their legal rights" (the in-person-orientation directive), although that change has not been implemented in any written policy memorandum.

Judge Moss held that, because Cuccinelli's appointment violated the FVRA, the "reduced-time-to consult" and "prohibition-on-extension" directives "have no force or effect" and "must be 'set aside'" because they exceeded statutory authority. Because the court only has jurisdiction over "written policy directive[s], written policy guideline[s], or written procedure[s]" relating to expedited removal by statute, however, the court rejected the plaintiffs' challenge to the in-person-orientation directive.

Judge Moss did not enjoin the two former directives, but set aside the removal orders of the five individual plaintiffs who were subject thereto. He stated that he was "unconvinced" that he "should extend this relief to other asylum seekers who were processed under the defective directives," because those aliens were not parties to the case, and class actions involving the implementation of the expedited-removal provisions are barred by statute.

What is unclear, however, is the effect that this decision will have on other migrants who were subject to the two directives, or on Cuccinelli's current status as head of USCIS (he is still listed as "Senior Official Performing the Duties of the Director" on the agency's website).

Cuccinelli stated on March 2, 2020, however, that the administration would appeal Judge Moss's decision, and that "his previous orders at USCIS would be 'effectively reissued and validated' to ensure their authority" following the court's decision.