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Cuccinelli’s Appointment to Top Immigration Post Was Unlawful, Judge Rules

Former Virginia Attorney General Ken Cuccinelli speaks at the Family Leadership Summit in Ames, Iowa, 2014. (Brian Frank/Reuters)

A federal judge ruled Sunday that President Trump unlawfully appointed Citizenship and Immigration Services Director Ken Cuccinelli in a decision that nullifies two of Cuccinelli’s directives.

U.S. District Judge Randolph Moss ruled that Cuccinelli’s appointment violated the Federal Vacancies Reform Act since “he never did and never will serve in a subordinate role — that is, as an ‘assistant’ — to any other USCIS official” but was instead “assigned the role of principal on day-one.”

“Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security’s order of succession may designate the office of the Principal Deputy Director as the ‘first assistant’ to the Director,” Moss wrote in his decision, but “labels–without any substance–cannot satisfy the [Federal Vacancies Reform Act’s] default rule under any plausible reading of the statute.”

“There may well be a difference between one who serves as ‘the assistant regional manager’ and ‘the assistant to the regional manager,’” The judge quipped, quoting the television show The Office.

Because of this, Cuccinelli “lacked authority” to issue two asylum directives, which must now be “set aside,” the judge said. One of the directives sped up initial screenings of immigrants seeking asylum, and another cracked down on extending them.

Cuccinelli took on the role of acting head of CIS in June. In November, the former Virginia attorney general also began serving as “senior official performing the duties of the deputy secretary” at the Department of Homeland Security.

The lawsuit was brought on behalf of seven immigrants seeking asylum by Democracy Forward and the Catholic Legal Immigration Network.

“This is both a victory for the rule of law and a significant blow to the Trump administration’s xenophobic agenda,” said Democracy Forward’s executive director, Anne Harkavy.

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