Judge Declares Ken Cuccinelli An Illegal

So when do we deport him?

A federal judge in Washington DC ruled yesterday that Ken Cuccinelli's appointment as (acting) director of US Citizenship and Immigration Services (USCIS) was illegal, and that two major policy changes Cuccinelli put in place are also illegal. US District Judge Randolph Moss ruled that Cuccinelli's appointment violated the Federal Vacancies Reform Act (FVRA), but Moss graciously didn't impose additional penalties on the administration for making him work on a Sunday.

Donald Trump has a long history of ignoring the Vacancies Reform Act, which requires that when certain top agency positions come open, they have to be filled by the "first assistant" in the chain of command. Trump prefers appointing loyalists who have no qualifications for their jobs, because he is a lawless dipshit.

Judge Moss's decision seems especially apt in Cuccinelli's case, since it underlines some basic points Trump's supporters keep yelling about immigration: If you don't enforce the law, you don't have a country; people who get their jobs illegally can't be trusted; and if Cuccinelli wants to be director of USCIS, he should get in line and be confirmed by Congress like everybody else.

Moss didn't buy the Trump administration's pretense that Cuccinelli's appointment as (acting) director conformed with the law. In his decision, Moss points out that after USCIS Director Francis Cissna resigned last year as part of Stephen Miller's purge at Homeland Security, his duties were automatically taken over by the next person in line, Deputy Director Mark Koumans. But then (acting) DHS Secretary Kevin McAleenan completely made up a completely new job for Cuccinelli, appointing him "to serve as the Principal Deputy Director of [USCIS]," and then rewrote the rules of succession at USCIS so the acting job would go to that brand-new job title, "principle deputy director," instead of the boring old "deputy director." Moss notes that

These two changes — both of which occurred after the vacancy arose — allowed Cuccinelli to leapfrog Koumans to become USCIS's acting Director.

And that's not cricket, Moss ruled, especially since McAleenan gave away the game by specifying the rule change would vanish once a permanent USCIS chief was appointed by the president and confirmed by Congress (if ever). As a result, Cuccinelli was simply not eligible to take the acting job under the FVRA.

He never did and never will serve in a subordinaterole— that is, as an "assistant"—to any other USCIS official.

Instead, Cuccinelli was appointed to a pretend-subordinate position with the express purpose of putting him at the head of the agency, and no, said Moss, you can't do that.

Because he was a fake director with no legal authority, the ruling tosses out two directives on asylum that Cuccinelli put in place:

The first directive shortened the length of time asylum-seekers have to prepare for "credible-fear interviews" with officials from 48 or 72 hours to "one full calendar day from the date of arrival at a detention facility." With the second, Cuccinelli prohibited asylum officers from granting extensions to this new policy "except in the most extraordinary of circumstances."

Like everything else in the Trump/Miller regime, the purpose was to make every single part of the asylum process harder, to keep people from meeting ever-tougher rules.

The ruling came as part of a lawsuit brought by two immigrant advocacy groups, Democracy Forward and the Catholic Legal Immigration Network, on behalf of five asylum seekers from Honduras. The groups argued that the new rules didn't give the plaintiffs — two women and three children — enough time to get lawyers before they met with asylum officers. The women said they'd both been raped and faced violence if they were deported back to Honduras, but the asylum officers at their rushed hearing said nah, they didn't have a "credible fear" of harm if they were returned. You can see how having an attorney might have helped. The challenge to Cuccinelli's authority is just one of the claims in their lawsuit.

The Washington Post   notes that Cuccinelli's very existence, as an ontological proposition, remains somewhat hazy:

Senior staffers at DHS and USCIS have repeatedly expressed doubts about the legality of Cuccinelli's authority, with several unclear about where he actually works.

According to his official biography page online , his title is senior official performing the duties of the deputy secretary for the Department of Homeland Security, and he is also the senior official performing the duties of the director, U.S. Citizenship and Immigration Services.

The Trump administration is already planning to appeal the ruling, on the principle that the "president" is allowed to do anything he wants, including ignoring the law. They'll insist that Cuccinelli is doing a fine job and that he should be allowed to stay in the position regardless of petty details about whether he got there "legally."

And we suspect not a single rightwing news outlet will accuse Trump of trying to grant this particular illegal worker "amnesty."

[ Politico / NPR / WaPo / L.M.-M. et al v Cuccinelli / Photo:  Gage Skidmore , Creative Commons license 2.0 ]

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