Latest Update March 1, 2020

VICTORY: THE COURT VOIDED APPOINTMENT OF KEN CUCCINELLI AS ACTING DIRECTOR OF USCIS AND HIS ASYLUM DIRECTIVES

On March 1st, a federal court ruled in our clients’ favor, holding that the Trump administration unlawfully appointed Ken Cuccinelli to serve as Acting Director of U.S. Citizenship and Immigration Services. The Court concluded that Cuccinelli “lacked authority” to perform the functions of the director and set aside as “invalid and without legal force or effect” two anti-immigrant, anti-asylum directives Cuccinelli issued.

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Unlawful immigration directives issued by Trump appointee Ken Cuccinelli eviscerate protections for asylum seekers fleeing persecution. An asylum seeker’s case for refuge in the United States turns on the effective presentation of their asylum claim at what is called the “credible fear” interview. The outcome of this interview can be the difference between life or death if the immigrant is forced to return to a dangerous homeland.

The administration’s unlawful asylum directives are designed to diminish the likelihood of success for these asylum seekers. The directives rush asylum seekers through their interview and curtail critical protections designed to ensure that they understand their rights and have the opportunity to consult with counsel. Specifically, these anti-immigrant policies strip away legal protections by:

  • Cutting in half, or more, the time for asylum seekers to consult a lawyer and prepare evidence to substantiate their fear of persecution—which can leave them with just a few hours to prepare for their interview, if that.
  • Prohibiting asylum seekers from obtaining a continuance except in extraordinary circumstances, such as being unconscious. Specifically, continuances are no longer granted when additional time is needed to prepare for the interview or overcome language barriers.

The directives—part of the Trump administration’s concerted effort to implement anti-immigrant policies designed to prevent asylum seekers from obtaining refuge in the United States—were first implemented at the South Texas Family Residential Center in Dilley, Texas, and subsequently at the Karnes County Residential Center in Karnes City, Texas. These detention centers house families and adult women, respectively, and are run by for-profit private prison companies. At both centers, many asylum seekers are from El Salvador, Guatemala, and Honduras, and have experienced severe forms of trauma, including child abuse, rape, incest, domestic violence, and the persecution of their loved ones.

On behalf of RAICES and seven asylum seekers, Democracy Forward, the Catholic Legal Immigration Network, Inc., Proskauer Rose LLP, and RAICES sued the Trump administration to challenge these unlawful immigration directives. The directives violate federal law because they curtail asylum seekers’ statutory rights, were implemented without considering the devastating impact on asylum seekers, were issued without any notice, violate the rights of disabled individuals and violate the First Amendment.

Our suit also asserts that the asylum directives are invalid under the Federal Vacancies Reform Act and the Appointments Clause of the Constitution because they were issued by Ken Cuccinnelli, who was unlawfully appointed to serve as Acting Director of U.S. Citizenship and Immigration Services. After Senate Majority Leader Mitch McConnell vowed to block Cuccinelli’s confirmation for any position, the Trump administration did an end run around the law with the extraordinary step of creating a new office for Cuccinelli in order to install him as the acting head of USCIS.

We won our lawsuit challenging Ken Cuccinelli’s appointment as Acting Director of USCIS. On March 1, a federal court ruled in our clients’ favor, holding that the Trump administration broke the law to appoint Cuccinelli. The Court voided two of his asylum directives and set aside the removal orders and negative credible fear determinations for the asylum seekers in our case, meaning that they will have another chance to have their claims heard. The Court’s conclusion also raises serious questions about the legality of removal orders issued to other asylum seekers under the same directives, as well as other actions Cuccinelli has undertaken.

September 6, 2019

We filed suit.

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September 27, 2019

We sought a preliminary injunction against the Asylum Directives.

Our filing details the urgent need to halt the unlawful Asylum Directives in light of how they expose asylum seekers to removal back to countries where they fear persecution and violence.

October 21, 2019

The government opposed our request for a preliminary injunction.

In their filing, the administration called the vulnerable position of asylum seekers “immaterial” and pressed the Court to uphold all three policies that strip legal protections from asylum seekers fleeing persecution. It also justified its implementation of the directives with a 2-page memorandum that simply referred to the “situation at the Southwest border” without any explanation or supporting evidence for why these directives were necessary.

October 28, 2019

We pushed back in support of the injunction.

Among other arguments, we refuted the administration's position that the Federal Vacancies Reform Act allows the president to appoint virtually anyone they want to serve in an acting role for a Senate-confirmed position, denying the Senate its Constitutional role in approving high level administration officials.

March 1, 2020

The Court ruled Cuccinelli appointment and directives illegal, reinstated protections for asylum seekers.

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Aman George

Counsel & Legal Policy Director

Former law firm associate working with the policy team to identify high impact legal actions.

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Ben Seel

Counsel & Legal Analyst

Focusing on justice, national security, immigration, and health care issues.

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John Lewis

Counsel

Litigating challenges to unlawful executive branch activity regarding immigration, civil rights, health care, education, veterans’ affairs, and more.

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