442 F.Supp.3d 1
D.D.C.2020Background
- June 1, 2019: USCIS Director Lee Cissna resigned; Deputy Director Mark Koumans (the statutory "first assistant") became acting Director under the FVRA.
- June 10, 2019: Acting DHS Secretary McAleenan created a new "Principal Deputy Director" position, appointed Kenneth Cuccinelli (a political outsider) to it, and redesignated that new office as USCIS’s "first assistant," displacing Koumans.
- July 2, 2019 (effective July 8): Cuccinelli, acting as USCIS Director, issued "Asylum Directives" that (1) reduced credible-fear consultation time to one full calendar day and (2) generally prohibited extensions except in extraordinary circumstances; plaintiffs also allege an unwritten cancellation of in-person legal orientations.
- Plaintiffs (five asylum-seeking individuals and RAICES) sued within 60 days under 8 U.S.C. § 1252(e)(3), challenging Cuccinelli’s appointment under the FVRA/Appointments Clause and the lawfulness of the Asylum Directives under the APA and other statutes; the court treated the preliminary-injunction motion as partial summary judgment.
- The Court held it had Article III and statutory jurisdiction to review the written reduced-time and no-extension directives but lacked statutory jurisdiction over claims about the alleged unwritten cancellation of in-person orientations.
- On the merits the Court concluded Cuccinelli was unlawfully serving (violating the FVRA), set aside the written Asylum Directives under 5 U.S.C. § 3348(d)(1) and the APA, vacated the individual plaintiffs’ negative credible-fear determinations, and remanded for further proceedings; it declined to grant a broad injunction or relief for non-parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of § 1252(e) review (can aliens with final removal orders challenge written policies?) | § 1252(e)(3) permits district-court review of regulations or written policy directives implementing expedited removal if suit is filed within 60 days. | Once an expedited-removal order issues, review is narrow and individual challenges are barred except in limited habeas circumstances. | Court: § 1252(e)(3) authorizes timely challenges to written regulations/policy directives; plaintiffs’ challenges to the written reduced-time and no-extensions directives are reviewable, but unwritten policy claims (in-person orientation) are not. |
| Article III standing for individual asylum-seekers | Denial of adequate consultation/preparation is a cognizable procedural injury; causation and relaxed redressability standards are met. | Plaintiffs offer no concrete evidence the changes affected interview outcomes; procedural harm alone insufficient. | Court: Individual plaintiffs have standing—injury in fact, causation (procedural link to substantive result), and relaxed redressability satisfied. |
| Validity of Cuccinelli’s appointment under the FVRA | Cuccinelli’s designation is invalid because the FVRA’s "first assistant" must be a subordinate who served as first assistant (or otherwise fit (a)(2)/(a)(3)), not a post-vacancy creation that never serves subordinately. | Agency may create/designate a first-assistant office after a vacancy; redesignation and appointment were lawful and practical. | Court: Appointment invalid — Principal Deputy Director was created and designated after the vacancy and never served as a subordinate "assistant"; the FVRA’s text, structure, history, and purpose foreclose this post-vacancy subterfuge. |
| Remedy for actions taken by improperly serving acting official | Actions performed in a vacant PAS office by someone not lawfully serving have no force; directives must be vacated and negative credible-fear determinations set aside. | If action is unlawful, it could be ratified by a properly appointed official; relief should be limited. | Court: Under 5 U.S.C. § 3348(d)(1) and the APA, the written reduced-time and no-extension directives have no force and are set aside; individual plaintiffs’ negative credible-fear determinations and removal orders vacated and remanded; no nationwide relief for non-parties and no injunction beyond vacatur. |
| Jurisdiction over alleged cancellation of in-person legal orientations | The cancellation is a reviewable implementation/policy affecting expedited removal. | The change was unwritten and therefore outside § 1252(e)(3)’s review of written policy directives/guidelines/procedures. | Court: Lacks statutory jurisdiction over unwritten in-person-orientation claim; that challenge is dismissed for lack of statutory reviewability. |
Key Cases Cited
- Edmond v. United States, 520 U.S. 651 (1997) (Appointments Clause structural principles and distinction between principal and inferior officers)
- Buckley v. Valeo, 424 U.S. 1 (1976) (Appointments Clause authority and Senate advice-and-consent role)
- NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) (interpreting the FVRA and Congress’s authority to authorize temporary acting officials)
- Lucia v. SEC, 138 S. Ct. 2044 (2018) (distinguishing officers from mere employees for Appointments Clause purposes)
- United States v. Eaton, 169 U.S. 331 (1898) (temporary performance of superior duties by subordinate does not transform status)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing elements and relaxed rules for procedural-rights plaintiffs)
- Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) (scope and timing of challenges to the expedited removal system)
- Ryder v. United States, 515 U.S. 177 (1995) (de facto officer doctrine principles)