In an Extraordinary End Run Around the Law, Trump Created New Office for Cuccinelli, Violating the Federal Vacancies Reform Act

Policy Changes Enacted By Cuccinelli Are Illegal – Coalition of Groups Demand His Immediate Removal

Washington D.C. — Today, Democracy Forward led a coalition of immigration and civil rights groups to send a letter to the Department of Justice explaining why President Trump’s appointment of Ken Cuccinelli as the acting head of U.S. Citizenship and Immigration Services (USCIS) is illegal and demanding that he be removed immediately. As the groups state, Mr. Cuccinelli’s appointment as Acting Director and Principal Deputy Director of USCIS in June was a blatant “end run” around the Federal Vacancies Reform Act (FVRA), as well as Congress’s constitutional authority to provide advice and consent. Cuccinelli’s unlawful appointment calls into question the validity of any action he directs and creates profound uncertainty around the nation’s immigration policies.

The signatory groups include Asian Americans Advancing Justice – LA, Asian Counseling and Referral Services, The Capital Area Immigrants’ Rights Coalition, Muslim Advocates, the National Immigration Law Center, and The Refugee and Immigrant Center for Education and Legal Services.

The letter asserts that “Cuccinelli’s appointment is unlawful. It casts a shadow over everything he or USCIS does to administer the nation’s lawful immigration system. Immigrants and non-immigrants alike deserve better.”

In May 2019, former USCIS Director Lee Francis Cissna resigned, leaving Mark Koumans, the Deputy Director, as the highest ranking official at USCIS. Under the FVRA, the person serving as “first assistant” — here, Deputy Director Koumans— generally assumes the role of acting head of an agency until someone is nominated and confirmed by the Senate for the role. But after Senate Majority Leader Mitch McConnell vowed to block Cuccinelli’s confirmation for any position, the Trump administration took the extraordinary step of creating a new office of Principal Deputy Director, designating its occupant “first assistant,” and installing Cuccinelli in that position.

Since this unlawful appointment, Cuccinelli has illegally used his authority to reduce the amount of time applicants have to prepare for their asylum interviews, pressured USCIS line officers to apply a harsher standard when screening asylum claims in the first instance, and to move the administration closer to penalizing immigrants who make use of certain health, education, and nutritional benefit programs. Cuccinelli is known for anti-immigrant rhetoric. He’s compared immigrants to rats and racoons, saying that D.C.’s policy to prevent animal control from killing rodents is “worse than our immigration policy.”

President Trump has said he prefers installing acting officials because they “give me more flexibility.” Acting officials currently are in charge of several crucial national security positions including:

• Acting Secretary of Homeland Security Kevin McAleenan
• Acting Commissioner of U.S. Customs and Border Protection Mark Morgan
• Acting Director of U.S. Immigration and Customs Enforcement Matthew Albence

As of July 22, 2019, the Trump administration is staffed with at least 15 acting officials in senior roles.

The letter was sent July 22, 2019.

Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.

Muslim Advocates is a national civil rights organization working in the courts, in the halls of power and in communities to halt bigotry in its tracks. We ensure that American Muslims have a seat at the table with expert representation so that all Americans may live free from hate and discrimination. 

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