Lawsuit challenges Ken Cuccinelli’s installation as acting director of USCIS

Washington, D.C. — Last night, organizations and communities challenging changes to the naturalization fee waiver process asked a federal court to immediately bar USCIS from implementing those changes until the lawsuit is resolved. They also added new claims to the case, asking the court to find that Ken Cuccinelli’s installation as acting head of USCIS was unlawful and that the proposed new rules are invalid as a result.

Cuccinelli was placed in the role of acting director in violation of the Federal Vacancies Reform Act (FVRA), which governs the process for filling a vacant executive branch position that is subject to Senate confirmation. The FVRA has been in the news lately as it also governs who will succeed Kevin McAleenan as acting Secretary of the Department of Homeland Security.

“Congress passed the FVRA to ensure that the President could not prevent the Senate from playing its constitutional role as a check on the executive branch when vacancies arise,” said Rachel Goodman, counsel at Protect Democracy. “It gave the FVRA teeth by making all actions taken by illegally-appointed officials void.”

“The Trump Administration is trying to do an end-run around the FVRA to implement its elitist and discriminatory immigration policies,” said John C. Yang, president and executive director of Asian Americans Advancing Justice | AAJC.

The FVRA allows the president to choose an acting official who is either an experienced manager at the agency in question, or any person who has been confirmed by the Senate for any role in the federal government. If the President does not name an acting official, then, by default, the existing deputy to the vacant office becomes the acting official.

At the time that Cuccinelli’s predecessor, USCIS Director Francis Cissna, resigned in June, Cuccinelli satisfied none of these criteria. In fact, he had never worked in the federal government. After it became clear that Senate Republicans would not confirm Cuccinelli as USCIS Director, the administration invented a new position at USCIS—“principal deputy director”—installed Cuccinelli in that new position, and then claimed that his position made him the acting director. This violates the FVRA and the Appointments Clause of the U.S. Constitution.

Plaintiffs in this suit are the City of Seattle and five naturalization legal service providers who serve low-income, citizenship-eligible legal permanent residents: Catholic Legal Immigration Network, Inc. (CLINIC), Central American Resource Center of California (CARECEN), Immigrant Legal Resource Center (ILRC), OneAmerica, and Self-Help for the Elderly. They amended their complaint yesterday to add claims under the FVRA and the Appointments Clause and asked the court to issue a nationwide preliminary injunction barring changes to the naturalization fee waiver process until the lawsuit is resolved.

Plaintiffs are represented by Protect Democracy, Advancing Justice | AAJC, the Seattle City Attorney’s Office, and Mayer Brown LLP.

The new fee waiver rules, announced October 25 and slated to go into effect December 2, will severely curtail naturalization applications from low-income applicants by making it much harder to apply for a fee waiver. Recent research from Stanford University’s Immigration Policy Lab suggests that the new rules could reduce the number of naturalization applications filed each year by as much as 10 percent.

More information about the case is available at: https://protectdemocracy.org/project/city-of-seattle-v-dhs/ 

The amended complaint can be found at:

https://protectdemocracy.org/resource-library/document/amended-complaint-city-of-seattle-v-dhs/

The preliminary injunction motion can be found at:

https://protectdemocracy.org/resource-library/document/preliminary-injunction-motion-city-of-seattle-v-dhs/