President Donald Trump skirted the law when he appointed Kenneth T. Cuccinelli II as one of his administration’s top immigration officials, and certain actions by Cuccinelli’s office should have no force or effect, according to a new lawsuit.
The complaint was submitted to the U.S. district court for the District of Columbia Friday by the Democracy Forward Foundation, Proskauer Rose LLP, Catholic Legal Immigration Network, Inc., and the Refugee and Immigrant Center for Education and Legal Services. It challenges three directives from U.S. Citizenship and Immigration Services, both based on their substance and because of the “unlawful acting official” who issued them.
Attorneys say the directives violate asylum seekers’ rights to consult with someone and prepare before their credible fear interview — a gate-keeping measure that determines whether the person can continue to fight for refuge in the United States before being removed from the country. The suit aims to eliminate the directives and seeks relief for seven Hondurans, including four children, who failed their credible fear interviews.
“This is a life or death interview, and the stakes could not be higher,” said Bradley Jenkins, federal litigation attorney at CLINIC and one of the lawyers working on the case.
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The directives winnow the time between arrival at a detention facility and the credible fear interview from 48 hours to the next calendar day, virtually bar continuances that would give asylum seekers more time to prepare their cases, and end legal orientations for vulnerable migrants. They create especially difficult obstacles for disabled asylum seekers and violate the Rehabilitation Act, according to the complaint.
“These directives are really part of a much broader agenda by this administration to curtail immigration generally, but even immigration from those fleeing persecution,” said William C. Silverman, who leads Proskauer’s global pro-bono efforts, and who worked on the case. “And that is inconsistent with the law, and it’s inconsistent with who we are as a nation.”
Together, the policies make it nearly impossible to provide people with legal counsel before the first hurdle in the asylum process, said Jenkins, despite the fact that U.S. code guarantees asylum seekers the right to consult with a third party before the interview as long as it’s at no cost to the government and doesn’t cause an unreasonable delay.
“The confluence of these policies really cuts out the last vestiges of due process in an already extremely summary process,” Jenkins said.
A USCIS official told NBC that the agency is unable to comment on pending litigation.
Attorneys say that the directives are “invalid” in part because Cuccinelli doesn't have "lawful authority” as acting director of USCIS. The complaint argues that Cuccinelli ascended to his position despite lack of experience, and that his appointment violates both the Federal Vacancies Reform Act (FVRA) and is unconstitutional.
The FVRA gives the president authority to appoint an acting director if the person is a first assistant to the office that’s been vacated, has been confirmed by the Senate for another position, or has experience and seniority within the agency.
John Lewis, counsel at Democracy Forward and one of the lawyers representing the suit, said the minimum qualifications required by the statute are there to ensure the president can’t just appoint a "yes man."
The suit claims that Trump created a new role, principal deputy director, to trigger a different order of succession, get around the FVRA and appoint Cuccinelli to head USCIS despite his lack of history at any federal agency.
Before joining USCIS, Cuccinelli was a former Virginia attorney general from 2010 to 2014 and a state senator from 2002 to 2010.
The complaint suggests that USCIS should instead be led by Mark Koumans, a veteran employee at the Department of Homeland Security whose bio page on the USCIS website, as of Sept. 6 in the morning, still said he was the agency’s acting director. Koumans was briefly acting director and the website was not changed to reflect his return to the deputy director role, though it has been updated now, according to a USCIS official.
Throughout his presidency, Trump has leaned on "acting" officials to fill some of his administration's top roles instead of going through the Senate confirmation process. The current head of DHS — the department that oversees USCIS —also has not been confirmed by Congress.
Cuccinelli has come under fire since becoming the face of the Trump administration’s crackdown on legal immigration in June. He dealt with backlash last month when he rephrased Emma Lazarus’ famous sonnet to reflect a new policy he was defending: “Give me your tired and your poor who can stand on their own two feet, and who will not become a public charge,” Cuccinelli said. Critics have taken issue with the positions he espouses considering his own ancestors’ immigrant history in the U.S.