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Aug. 14, 2020 – Note: As we were hitting send on this release, the Government Accountability Office separately concluded that both Ken Cuccinelli and Chad Wolf, who are serving as the Senior Official Performing the Duties of the Deputy Secretary of Homeland Security and Acting Secretary of Homeland Security, respectively, were appointed illegally and are therefore ineligible to serve in their current roles.

Late last night, the Trump administration dismissed its appeal of a federal court’s March ruling that Ken Cuccinelli was illegally appointed as Acting Director of U.S. Citizenship and Immigration Services (USCIS).

In response to the news:

Anne Harkavy, Democracy Forward Executive Director, said: “It’s been clear from the start: Ken Cuccinelli was unlawfully appointed to lead USCIS. The Trump administration retreated from its legal fight because it knows the law is not on its side. This is a victory for the rule of law and for the asylum seekers and immigrants hurt by the administration’s harmful policies.”

Manoj Govindaiah, RAICES Litigation Director, said: “Ken Cuccinelli never actually had authority over USCIS, and all of the policies he enacted as acting director — including harsher screening standards at the border and punishment for immigrants who used government health, housing, and food programs — must be struck down immediately. The decision not to pursue this appeal is a significant victory, both for our community suffering from Cuccinelli’s policies and for other advocates hoping to hold the administration in check. The Trump administration has time and again appointed ‘acting’ officials to go around the Senate’s critical confirmation process, an attempt to circumvent its constitutional role. Our suit showed that the administration can be held accountable for such evasions — with real results.” 

Anna Gallagher, CLINIC Executive Director, said: “The appointment of Ken Cuccinelli as acting director of U.S. Citizenship and Immigration Services violated the Federal Vacancies Reform Act, which should, on its own, render the cruel policies he has enacted in his tenure void. This dismissal is a victory, not only for those men, women, and children affected by Cuccinelli’s policies, but for everyone fighting to hold the Trump administration accountable for its actions.”

Background

On March 1st, a federal court ruled that the Trump administration illegally appointed Ken Cuccinelli to serve as Acting Director of USCIS. The court concluded Cuccinelli “lacked authority” to perform the functions of the director and voided as “invalid and without legal force or effect” two immigration directives he issued that eviscerated important legal protections for asylum seekers.

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On behalf of seven asylum seekers and RAICES, Democracy Forward, the Catholic Legal Immigration Network, Inc. (CLINIC), and Debevoise & Plimpton LLP, brought suit against Ken Cuccinelli and the Trump administration on September 6, 2019. The successful suit alleged that his appointment violated the Federal Vacancies Reform Act.
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. 

The Refugee and Immigrant Center for Education and Legal Services (RAICES) is a 501(c)(3) nonprofit that promotes justice by providing free and low-cost legal services to underserved immigrant children, families and refugees in Central and South Texas. RAICES is the largest immigration non-profit in Texas with offices in Austin, Corpus, Dallas, Fort Worth, Houston, and San Antonio

The Catholic Legal Immigration Network, Inc., or CLINIC, advocates for humane and just immigration policy. Its network of nonprofit immigration programs — more than 370 affiliates in 49 states and the District of Columbia — is the largest in the nation. CLINIC provides substantive legal and program management training and resources, as well as advocacy support at state, local and national levels.