Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA L.M.-M., et al. ,
Plaintiffs ,
v. Civil Aсtion No. 19-2676 (RDM) KENNETH T. CUCCINELLI II, in his purported official capacity as acting Director
of U.S. Citizenship and Immigration Services,
et al. ,
Defendants. MEMORANDUM OPINION AND ORDER
Under the Appointments Clause of Article II of the Constitution, the President must
obtain “the Advice and Consent of the Senate” before appointing any principal officer of the
United States and, unless Congress vests the appointment power in the President, a court, or a
department head alone, before appointing any inferior officer as well. U.S. Const., Art. II, § 2,
cl. 2. This requirement is “more than a matter of ‘etiquette or protocol’; it is among the
significant structural safeguards of the constitutional scheme.”
Edmond v. United States
, 520
U.S. 651, 659 (1997) (quoting
Buckley v. Valeo
,
The Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3345
et seq.
,
represents the “latest version of that authorization.”
SW General, Inc.
,
The relevant events began on June 1, 2019, when Lee Francis Cissna, the Senate- confirmed Director of USCIS, resigned, and, as the FVRA prescribes, his “first assistant,” Deputy Director Mark Koumans, automatically assumed the post of acting Director. See Dkt. 22-1 at 14 (Pls.’ SUMF ¶¶ 81–84); Dkt. 17-2 at 5–7, 12 (USCIS order of succession); Dkt. 12-6 at 2 (Monk Decl. ¶ 6). Koumans’s tenure, however, was short-lived. Nine days after Director Cissna’s resignation, the then-serving acting Secretary of the Department of Homeland Security, Kevin McAleenan, appointed Cuccinelli “to serve as the Principal Deputy Director of [USCIS],” Dkt. 17-4 at 5 (Blackwell Decl., Ex. 1), a position that did not exist prior to Cuccinelli’s appointment, see Dkt. 17-2 at 12 (Johnson Decl., Ex. 1 at D-1). That same day, acting Secretary McAleenan also revised USCIS’s order of succession, designating the newly created position of Principal Deputy Director as “the First Assistant and most senior successor to the Director of USCIS.” Dkt. 17-4 at 7 (Blackwell Decl., Ex. 2). These two changes—both of which occurred after the vacancy arose—allowed Cuccinelli to leapfrog Koumans to become USCIS’s acting Director.
But neither of these changes was designed to endure. Acting Secretary McAleenan specified that Cuccinelli’s appointment as Principal Deputy Director “will remain in effect until the earlier to occur of (1) the appointment of a Director of USCIS by the President of the United States, or (2) the express revocation of this appointment.” at 5 (Blackwell Decl., Ex. 1). And acting Secretary McAleenan specified that the revised ordеr of succession, which re-designated the Principal Deputy Director position as the “first assistant” to the Director, “will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President.” Id. at 7 (Blackwell Decl., Ex.2). In other words, as soon as the vacant office is filled, the status quo will be restored.
On July 2, 2019, three weeks after assuming his new office, Cuccinelli issued a memorandum announcing a revised policy for scheduling credible-fear interviews in expedited removal proceedings. AR 113. Under the revised policy, USCIS (1) reduced the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to “one full calendar day from the date of arrival at a detention facility,” AR 113 (“reduced-time-to-consult directive”), and (2) prohibited asylum officers from granting asylum seekers extensions of time to prepare for their credible-fear interviews, “except in the most extraordinary of circumstances,” id. ; see also AR 114 (“prohibition-on-extensions directive”). Although not reflected in the memorandum, Plaintiffs assert that Cuccinelli also cancelled “[t]he in-person [legal] orientation process that was” previously “in place” at the Dilley Detention Center in Dilley, Texas. Dkt. 12-2 at 3–4 (Fluharty Decl. ¶¶ 6–7) (“in-person-orientation directive”). Before its cancellation, according to Plaintiffs, that policy “allowed asylum seekers to ask questions about their legal rights, provided the only means of transmitting information to asylum seekers who cannot read, and facilitated understanding for asylum seekers with special needs, including disabilities or competency issues.” Dkt. 12 at 18; see also Dkt. 12-2 at 3–4 (Fluharty Decl. ¶¶ 6–7). Taken together, Plaintiffs refer to these revised policies as the “Asylum Directives.”
Plaintiffs, five individual native Honduran asylum seekers (two adults and three of their minor children) and the Refugee and Immigrant Center for Education and Legal Services (“RAICES”), a nonprofit organization that provides legal services to refugees, challenge the lawfulness of the Asylum Directives on multiple grounds. First, they allege that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, as a result, the Asylum Directives must be set aside under the Appointments Clause, the FVRA, 5 U.S.C. § 3348(d)(1), the Administrative Procedure Act (“APA”), 5 U.S.C. §706(2)(A), and as ultra vires . Dkt. 1 at 63–68 (Compl. ¶¶ 225–36). Second, they allege that the Asylum Directives themselves are inconsistent with various statutory and regulatory requirements, including an asylum applicant’s statutory right to “consult with a person or persons of the alien’s choosing prior to the [credible- fear] interview,” 8 U.S.C. § 1225(b)(1)(B)(iv), and the regulatory authority of asylum officers freely to reschedule credible-fear interviews whenever the asylum seeker “is unable to participate effectively . . . because of illness, fatigue, or other impediments,” 8 C.F.R. § 208.30(d)(1). Dkt. 1 at 57–58 (Compl. ¶¶ 194–97). Third, they contend that the Asylum Directives are arbitrary and capricious because USCIS failed to consider how the Directives harm asylum seekers, acted based on “animus toward immigrants” and failed to provide an adequate justification for the policy changes. Id. at 58–59 (Compl. ¶¶ 198–204). Fourth, they further allege that USCIS failed to comply with the APA’s notice-and-comment and advanced-notice requirements. Id. at 59–60 (Compl. ¶¶ 207–08). Fifth, Plaintiffs maintain that the Asylum Directives discriminate against asylum seekers with “trauma-related and other mental impairments” in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq . Id. at 60–62 (Compl. ¶¶ 209–18). Finally, they allege that the Asylum Directives violate the First Amendment by interfering with the ability of the individual Plaintiffs and RAICES “to communicate and [to] associate” with one another regarding the individual Plaintiffs’ legal rights. at 62–63 (Compl. ¶¶ 219–23).
As explained below, the Court is satisfied that at least one Plaintiff has Article III standing and that the Court has statutory jurisdiction over Plaintiffs’ challenges to the reduced- time-to-consult and prohibition-on-extensions directives. The Court is not persuaded, however, that it has statutory jurisdiction over Plaintiffs’ challenge to the in-person-orientation directive. On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced-time-to-consult and рrohibition-on-extensions directives. The remedy for that deficiency, moreover, is compelled by the FVRA and the APA: the Asylum Directives must be set aside. Finally, having reached that conclusion, the Court need not—and does not—reach Plaintiffs’ alternative legal challenges.
I. BACKGROUND
A. The Expedited Removal System
Congress first introduced the concept of expedited removal when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996. Pub. L. No. 104- 208, Div. C, 110 Stat. 3009–546, 3009 (1996) (codified as amended in scattered sections of 8 U.S.C.). Expedited removal procedures allow the Department of Homeland Security (“the Department”) to remove a subset of aliens—those arriving at the border and those who recently entered the United States without inspection—with considerably less process than the formal proceedings required to remove other aliens. See 8 U.S.C. § 1225(b)(1)(A)(i). IIRIRA, in particular, authorizes the Department to remove aliens subject to expedited removal procedures “without further hearing or review[.]” Id. If an alien subject to expedited removal “indicates either an intention to apply for asylum . . . or a fear of persecution,” however, then the immigration officer is required to “refer the alien for an interview by an asylum officer,” id. § 1225(b)(1)(A)(ii), who must determine whether the alien has a “credible fear of persecution,” id. § 1225(b)(1)(B).
IIRIRA sets out procedures that are to be used when an alien is referred to an asylum officer for a credible-fear interview. The alien must be “provide[d] [with] information concerning the asylum interview” and must be allowed to “consult with a person or persons of the alien’s choosing prior to the interview,” although “[s]uch consultation shall be at no expense to the Government and shall not unreasonably delay the process.” § 1225(b)(1)(B)(iv). If the asylum officer determines that the alien has a credible fear of persecution, “the alien [is] detained for further consideration of the application for asylum,” id. § 1225(b)(1)(B)(ii), and is typically placed in formal removal proceedings. If the asylum officer determines that the alien doеs not have a credible fear of persecution, “the officer shall order the alien removed from the United States without further hearing or review.” § 1225(b)(1)(B)(iii)(I).
USCIS oversees credible-fear interviews. Although the now-defunct Immigration and Naturalization Service (“INS”) once oversaw asylum applications, see, e.g. , U.S. Department of Justice, Immigration and Naturalization, Asylum, 39 Fed. Reg. 41,832 (Dec. 3, 1974), the “functions” of adjudicating “asylum and refugee applications” and of “establish[ing] the policies for performing [that] function” were transferred to the Director of USCIS by the Homeland Security Act of 2002, Pub. L. No. 107-296, Subtitle E, 116 Stat. 2195 (codified at 6 U.S.C. § 271 et seq. ), 6 U.S.C. § 271(a)(3)(A) and (b)(3). Consistent with those authorities, the USCIS Director establishes policies for processing aliens that have been referred to USCIS for a credible-fear determination. See, e.g. , USCIS, Policy Memorandum, Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A- B- (July 11, 2018), available at https://tinyurl.com/y6xt6j8l (last accessed March 1, 2020). B. Cuccinelli’s Appointment
On June 1, 2019, Lee Francis Cissna resigned as Director of USCIS, creating a vacancy in that PAS position. Dkt. 22-1 at 14 (Pls.’ SUMF ¶ 81); Dkt. 26 at 2 (Response to Pls.’ SUMF). Under USCIS’s order of succession at the time, Deputy Director Mark Koumans served as the Director’s “first assistant” and thus, pursuant to the FVRA’s default rule, automatically became the acting Director. Dkt. 12-6 at 13 (Monk Decl., Ex. 4). A few days later, on June 6, 2019, the Department’s Office of Human Capital & Training sent Kenneth Cuccinelli II a letter “[c]ongratulat[ing] [him] on [his] noncareer Senior Executive Service (SES) appointment as Principal Deputy Director, ES-0301, U.S. Citizenship and Immigration Service,” effective on June 10, 2019. Dkt. 17-3 at 5 (Monroe Decl., Ex. 1). Prior to his appointment to that position, Cuccinelli had never been employed by the federal government. Dkt. 12-6 at 9 (Monk Decl., Ex. 2). Although not stated in the letter, it is undisputed that the Principal Deputy Director position did not exist prior to Cuccinelli’s appointment. Dkt. 22-1 at 14 (Pls.’ SUMF ¶ 85); Dkt. 26 at 2 (Response to Pls.’ SUMF). Consistent with the Department’s letter, on June 10, 2019, then- acting Secretary McAleenan appointed Cuccinelli “to serve as the Principal Deputy Director of [USCIS].” Dkt. 17-4 at 5 (Blackwell Decl., Ex. 1). The appointment will expire without further action upon “the appointment of a Director of USCIS by the President of the United States.” Id.
On the same day as Cuccinelli’s appointment, acting Secretary McAleenan also issued a memorandum entitled “Amendment to the Order of Succession for [USCIS].” Id. at 7 (Blackwell Decl. Ex. 2). The memorandum consists of a single paragraph, which provides as follows:
Pursuant to Paragraph II.K of Department of Homeland Security . . . Delegation No. 0106, DHS Orders of Succession and Delegations of Authority for Named Positions (last updated on April 10, 2019), I am exercising my reserved right to re-designate the order of succession for [USCIS] . . . . I hereby designate the Principal Deputy Director of USCIS as the First Assistant and most senior successor to the Director of USCIS in such order of succession. Annex D of DHS Delegation No. 0106 is hereby modified in accordance with this designation. This designation, and the corresponding modification to Annex D of DHS Delegation No. 0106, will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the President. I reserve the right to amend or revoke this designation and such modification at any time. at 7 (Blackwell Decl. Ex. 2). The acting Secretary thus designated the newly created position
of Principal Deputy Director as the “first assistant” to the Director for purposes of the FVRA, see Dkt. 17-2 at 5–6, 12 (Johnson Decl., Ex. 1), but only until the appointment of a new Director of USCIS by the President, Dkt. 17-4 at 7 (Blackwell Decl., Ex. 2). As a result, on the first day Cuccinelli reported to USCIS for work, he displaced Deputy Director Koumans as the acting Director. See Dkt. 12-6 at 9 (Monk Decl., Ex. 2). That appointment—and the parallel designation—will expire when the vacant office is filled. Dkt. 17-4 at 5 (Blackwell Decl., Ex. 1); id. at 7 (Blackwell Decl. Ex. 2).
C. The Asylum Directives
On July 2, 2019, Cuccinelli sent the acting Secretary of Homeland Security a memorandum notifying him that, “effective July 8, 2019, USCIS [1] is reducing the credible fear . . . consultation period to one full calendar day from the date of arrival at the detention facility . . . and [2] will deny requests for extensions, аs unreasonably delaying the process, except in the most extraordinary circumstances.” AR 113. The memorandum explained that the Immigration and National Act (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101 et seq .), provides asylum seekers “in the credible fear process” the right “to consult with a person(s) of their choosing, as long as the consultation is at no expense to the government and does not unreasonably delay the process.” AR 113. Under the pre-existing policy, those held at Family Residential Centers (“FRCs”) were “given 72 hours after arrival at the facility and re-orientation by USCIS to seek and receive consultation,” and at all other detention facilities, “single adults [were] generally not interviewed until at least 48 hours after arrival at the detention facility in order to [be able to] seek and receive consultation before the interview [took] place.”
According to the memorandum, Cuccinelli decided to reduce the credible-fear consultation period, and to limit the availability of extensions to only “the most extraordinary circumstances,” for two reasons. Id . First, he explained that USCIS had recently “completed revisions to [its] Form M-444, Information About Credible Fear Interview ,” AR 113–14. USCIS gives that form to detainees upon their arrival at a detention facility to comply with its statutory and regulatory obligations to provide asylum seekers subject to expedited removal with “information concerning the asylum interview.” 8 U.S.C. § 1225(b)(1)(B)(iv); 8 CFR § 208.30(d)(2); 6 U.S.C. § 271(b)(3) (transferring to the Director responsibility for the function of adjudicating asylum applications). By “using plain language principles in order to provide greater clarity to the alien during the consultation process,” AR 113–14, Cuccinelli explained, the revised M-444 form “makes the [credible-fear] process easier for aliens to understand,” and thus justifies a shortened consultation period, AR 114. Second, the memorandum asserted, without elaboration, that the policy shifts were also justified because “USCIS must do its part to ensure the processing of aliens is not unduly delayed in light of the situation at the Southwest Border.” AR 114. The memorandum’s concluding paragraph, repeated both rationales, stating:
Given the critical need [at the Southwestern border], coupled with the improvements made to the M-444[,] which makes the [credible-fear] process easier for aliens to understand, [the acting USCIS Director has] decided to reduce the timeframe for consultation to one full calendar day at both the FRCs and all other facilities. In practice, this means individuals will have longer than 24 hours to consult depending on when they arrive at the facility. Reducing the time period for consultation could lead to longer delays at a later point in the process for some cases, as USCIS may receive more frequent requests to reschedule interviews. However, USCIS is also establishing a new policy of requiring extraordinary circumstances warranting approval of a request to reschedule so that USCIS can ensure, consistent with the statute, that the consultation period does not unreasonably delay the overall process.
AR 114.
On July 8, 2019, USCIS updated its “Credible Fear Procedures Manual” to reflect the policy changes announced in the memorandum. AR 115–17. The updated manual notes that it is now the policy of “the Asylum Program to allow a minimum of one full calendar day to transpire between the arrival of an alien at a detention site or receipt of initial M-444 (whichever is later) and any credible[-]fear interview.” AR 117. It further states that “[i]f USCIS is prepared to proceed with the interview after the consultation period has passed, asylum offices normally will deny requests for extensions of the consultation period, . . . except in extraordinary circumstances.” Id. Finally, the updated manual notes that “[e]xtraordinary circumstances may include, but are not limited to, serious illness or mental or physical disability of the alien, a member of the alien’s immediate family, or the alien’s consultant, and facility issues that prevent the alien from contacting a consultant.” AR 117.
Although not memorialized in the memorandum, or in any other written policy produced in this litigation, Plaintiffs offer evidence that Cuccinelli adopted a third, significant change in policy relating to the ability of asylum seekers to prepare for their credible-fear interviews. Prior to issuance of the memorandum, “USCIS officials at [the Dilley Detention Center in South Texas] would provide an oral, in-person legal orientation, which allowed asylum seekers to ask questions about their legal rights.” Dkt. 12-2 at 3 (Fluharty Decl. ¶ 6). As part of that process:
[M]others and their minor children watched a video that explained the nature and purpose of the credible[-]fear interview . . . and sat down individually with an asylum officer who: (1) provided them with a written copy of Form M-444, (2) asked them if they had any questions regarding the interview process, (3) confirmed which language they speak and understand best, (4) confirmed whether the family prefers to speak with a male or female officer, and (5) provided the family with two copies of Form G-56, which indicated the day and time their interview would take place. According to Plaintiffs, that process “has now been canceled.” Id. (Fluharty Decl. ¶ 7).
D. Plaintiffs
Plaintiff L.M.-M. is a Honduran national who, along with her two minor children, Plaintiffs B.M.-M. and V.M.-M, is “currently seeking asylum in the United States.” Dkt. 12-3 at 1 (L.M.-M. Decl. ¶ 1). She attests that she fled Honduras because she has been “targeted by the Honduran government” due to her “political opinion” and “because [her] partner and the father of [her] youngest child beat [and] raped” her, “hit [her] daughters,” “threatened to harm [her] if [she] ever left him, and when [she] did leave him, . . . continued to pursue and threaten [her].” Id. at 1–2 (L.M.-M. Decl. ¶ 2). On August 10, 2019, L.M.-M. and her daughters entered the United States and soon thereafter were detained and placed in expedited removal proceedings. Id. at 2 (L.M.-M. Decl. ¶ 4).
L.M.-M. and her daughters were detained at two separate facilities before they were transferred to the USCIS “detention center in Dilley, Texas on August 13, 2019.” Id. The day after they arrived, L.M.-M. attended a “Know Your Rights presentation” and spoke with a legal assistant from the Dilley Pro Bono Project for less than an hour. Id. at 3 (L.M.-M. Decl. ¶ 8). She continued to confer with the legal assistant for about forty-five minutes after dinner, but her appointment was cut short by the guards before she “finished discussing [her] case.” Id. at 3–4 (L.M.-M. Decl. ¶ 8). That same evening, she was given a “piece of paper” that said she had a meeting scheduled “in the asylum building” at 10:00 a.m. the next morning. Id. at 4 (L.M.-M. Decl. ¶ 9). The paper “did not explain what [her] appointment would be about or any other information about the credible[-]fear process.”
L.M.-M. attests that, at her credible-fear interview the next day, she “was unable to talk about [her] fear of [her] abusive partner.” Id. at 4 (L.M.-M. Decl. ¶ 10). She also avers that she “was worn out and tired from the exhaustive intake process the day before as well as the many other appointments and meetings [she] had to attend.” Id. The interviewer determined that L.M.-M. did not have a credible fear of persecution, and that determination was “subsequently affirmed by an Immigration Judge.” Dkt. 22-1 at 23 (Pls.’ SUMF ¶ 151) (citing Dkt. 22-4 at 1 (Supp. L.M.-M. Decl. ¶ 2)). L.M.-M. and her children are currently subject to orders of expedited removal. See id .
Like L.M.-M., Plaintiff M.A.-H. is a Honduran national who, along with her minor daughter, Plaintiff I.M.-A., is seeking asylum in the United States. Dkt. 12-4 at 1 (M.A.-H. Decl. ¶ 1). Plaintiff M.A.-H. attests that she “suffered persecution in Honduras” because she supports the “National Party in Honduras;” that she endured “sexual abuse, rape, and physical abuse” while in Honduras; and that she feared that her daughter, who “ha[d] been stalked by . . . MS-13 [gang] members,” [1] “would soon be kidnapped, drugged, and raped” in Honduras. Id. at 1–3 (M.A.-H. Decl. ¶¶ 3–9). Upon entering the United States, she and her daughter were detained by immigration officials, placed in expedited removal proceedings, and then transferred to the Dilley Detention Center. Id. at 5–6 (M.A.-H. Decl. ¶¶ 16, 22).
M.A.-H. and her daughter “arrived at Dilley on August 21 at 4:00 p.m.” Id. at 6 (M.A.- H. Decl. ¶ 22). She received neither an M-444 form nor an in-person legal orientation. Id. USCIS officials did give her some “documents to sign,” which they assured her “were not legal documents.” Id . She signed the documents even though she was unable to read them, and, because the USCIS officials did not explain what the documents were, she did not understand what she was signing. Id. The next day she attended an orientation about the facility, received a medical еxamination, and sought a legal appointment—but there were no remaining appointments available that day. Id. at 6–7 (M.A.-H. Decl. ¶ 23). “[A]round 7:00 pm that night,” M.A.-H received a notice informing her that her credible-fear interview would take place at “8:00 am the next morning.” Id. at 7 (M.A.-H. Decl. ¶ 23). At 7:30 a.m., M.A.-H. went to look for a lawyer, but when she found one, the lawyer told her that there was insufficient “time to prepare [for her credible-fear interview] and that [she] should go and ask for more time in order to obtain legal orientation.” (M.A.-H. Decl. ¶ 24). M.A.-H. requested “additional time to prepare and “was given 30 minutes.” Id . (M.A.-H. Decl. ¶ 25). She then returned to the lawyer, who advised her to request 24 hours to prepare, but the asylum officer denied that request and pressed forward with the interview. Id. In addition to being denied the opportunity to prepare or to substantively consult with counsel, the short turnaround time between arriving at Dilley and her credible-fear interview prevented M.A.-H. from “sp[eaking] with [her] brother[] or son,” both of whom had “additional information that would have helped [her] explain the circumstances that caused [her] fear and . . . [her] need to leave” Honduras. (M.A.-H. Decl. ¶ 24).
Asylum officers determined that M.A.-H. and her minor daughter did not have a credible fear of persecution, and an Immigration Judge affirmed those determinations. Dkt. 22-1 at 27 (Pls.’ SUMF ¶ 188) (citing Dkt. 22-5 (Supp. M.A.-H. Decl. ¶ 13)). As a result, like L.M.-M. and her children, M.A.-H. and her daughter are subject to orders of expedited removal. [2] See id. M.A.-H. attests that, due to the Asylum Directives, she did not have an adequate opportunity to prepare for her credible-fear interview and that, with additional time to consult, she “would have understood the process better” and “would have been in a better position to describe the threats facing [her] daughter” and the abuse that she herself had suffered. Dkt. 12-4 at 8 (M.A.-H. Decl. ¶ 26).
Plaintiff “RAICES is a . . . non-profit organization headquartered in San Antonio, Texas.” Dkt. 12-5 at 2 (Meza Decl. ¶ 3). Its stated “mission is to defend the rights of immigrants and refugees, empower individuals, families and communities, and advocate for liberty and justice.” Id. (Meza Decl. ¶ 4). Although RAICES acceрts “cases of clients in detention centers throughout Texas,” it serves as “the primary non-profit service provider at” the Karnes County Residential Center in Karnes City, Texas (“Karnes”) and “strives to provide free, universal representation through all phases of the immigration process during detention at Karnes.” Id. at 2–3 (Meza Decl. ¶¶ 4–7). RAICES serves “between 80–95% of the population at Karnes” by, among other things, “conduct[ing] consultations and intakes, prepar[ing] detainees for their credible[-]fear interviews and represent[ing] detainees at their credible[-]fear interviews,” and “appealing negative decisions from their credible[-]fear interviews.” Id. at 3 (Meza Decl. ¶ 6–7). E. Procedural Background
The reduced-time-to-consult and prohibition-on-extensions directives took effect on July 8, 2019, see AR 113, and 60 days later, on September 6, 2019, the individual Plaintiffs and RAICES brought this suit, Dkt. 1, alleging that (1) Cuccinelli’s appointment to serve as acting Director of USCIS was unlawful under both the FVRA and the Appointments Clause and that, as a result, the Asylum Directives are invalid; (2) the Asylum Directives are, in any event, contrary to law, including the statutory requirement that USCIS provide asylum applicants with a meaningful opportunity to “consult with a person or persons of the alien’s choosing prior to the [credible-fear] interview,” 8 U.S.C. § 1225(b)(1)(B)(iv), and the regulatory authority of asylum officers freely to reschedule credible-fear interviews whenever the asylum seeker “is unable to participate effectively . . . because of illness, fatigue, or other impediments,” 8 C.F.R.
§ 208.30(d)(1); (3) the Asylum Directives are arbitrary and capricious; (4) USCIS failed to comply with the APA’s notice-and-comment and advanced-notice requirements; (5) the Asylum Directives violate the Rehabilitation Act, 29 U.S.C. § 701 et seq. ; and (6) the Asylum Directives violate the First Amendment by interfering with the ability of the individual Plaintiffs and RAICES to communicate and associate regarding the asylum process.
Three weeks after filing their complaint, Plaintiffs moved for a preliminary injunction. Dkt. 12. That motion relies on only four of the claims set forth in the complaint—Plaintiffs’ FVRA challenge to Cuccinelli’s appointment; their contention that the Asylum Directives violate various statutory and regulatory requirements; their claim that the directives are arbitrary and capricious; and their Rehabilitation Act claim. Dkt. 12 at 12. On December 3, 2019, the Court held a hearing on Plaintiffs’ motion for a preliminary injunction. Minute Entry (Dec. 3, 2019). At the hearing, the Court raised the question whether that motion should be treated as an expedited motion for summary judgment, and neither Plaintiffs nor Defendants opposed proceeding in that fashion. Dkt. 24 at 6 (Dec. 3, 2019 Hrg. Tr.). The Court, accordingly, directed that Plaintiffs’ pending motion for a preliminary injunction be treated as a partial motion for summary judgment on counts I, II, IV, and VI of the complaint, see Fed. R. Civ. P. 65(a)(2); Minute Order (Jan. 9, 2020), and set a schedule for Plaintiffs’ to supplement their submission and for Defendants to respond to Plaintiffs’ motion for partial summary judgment, Entry Order (Dec. 3, 2019). Defendants, in turn, cross-moved for partial summary judgment on Counts I and II of the complaint. Dkt. 25 at 8.
II. ANALYSIS
Before reaching the merits of Plaintiffs’ claims, the Court must determine whether it has
jurisdiction.
See Steel Co. v. Citizens for a Better Env’t
,
Defendants assert that the Court lacks jurisdiction for several reasons. First, they argue
that neither the individual Plaintiffs nor RAICES has Article III standing. Dkt. 17 at 26–30.
Second, they contend that RAICES lacks statutory standing to sue under the INA. at 24.
Third, they maintain that the Court’s statutory jurisdiction is limited to challenges to “written
policy directive[s]” and thus does not include Plaintiffs’ challenge to the discontinuance of the
in-person legal orientation program at the Dilley Detention Center.
Id.
at 25–26. As explained
below, the Court agrees with Defendants’ final contention—that the Court lacks statutory
jurisdiction over Plaintiffs’ challenge to the in-person-orientation directive.
[3]
But with respect to
the reduced-time-to-consult and prohibition-on-extensions directives, the Court concludes that
the individual Plaintiffs have Article III standing and that those claims fall within the Court’s
statutory jurisdiction. Finally, having reached that conclusion, the Court need not decide
whether RAICES also has standing to pursue those same claims and to seek the same relief.
See
Town of Chester, N.Y. v. Laroe Estates, Inc
.,
Because Defendant’s Article III standing argument turns in part on the scope of the Court’s statutory jurisdiction, the Court begins by addressing Defendants’ arguments concerning that issue.
Statutory Jurisdiction Although their arguments are cast in terms of Article III redressability, Defendants posit that the Court lacks statutory jurisdiction under 8 U.S.C. § 1252(e)—or 28 U.S.C. § 1331—to review an order of expedited removal, except under limited circumstances not present here. Dkt. 17 at 30. That argument rests on the premise that IIRIRA “does not authorize review of a credible-fear determination once an order of expedited removal has issued.” Id. Plaintiffs disagree and argue instead that asylum seekers subject to expedited removal orders may “challenge the policies by which [their expedited] orders [of removal] were issued.” Dkt. 19 at 11. The plain text of the statute and instructive D.C. Circuit precedent confirm that Plaintiffs have the better argument. That conclusion is not a total victory for Plaintiffs, however. Rather, as explained below, Defendants are correct that the Court lacks statutory jurisdiction over one of Plaintiffs’ challenges.
IIRIRA expressly contemplates that its expedited removal provision, 8 U.S.C.§ 1225(b), and the regulations and policies adopted to implement that provision, might be subject to judicial challenge. The statute thus permits “judicial review of the . . . [expedited removal] system” and its implementing regulations and policies, Am. Immigration Lawyers Ass’n v. Reno , 199 F.3d 1352, 1354 (D.C. Cir. 2000) (hereinafter “ AILA ”), but (1) limits the scope of relief available in habeas corpus and (2) channels and sets time limits on systemic challenges to the expedited removal system and the regulations and written guidance that implement it, see 8 U.S.C.§ 1252(e). Defendants contend that this provision precludes the Court from redressing the individual Plaintiffs’ injuries because, “once an order of expedited removal has issued,” an alien may obtain judicial review only in limited circumstances not applicable here. Dkt. 17 at 30. That contention fails for several reasons.
The Court’s analysis of the meaning IIRIRA’s channeling provision is guided by the
“familiar principle of statutory construction: the presumption favоring judicial review of
administrative action.”
Kucana v. Holder
,
The Court begins with the text of the statute. See BP Am. Prod. Co. v. Burton , 549 U.S. 84, 91 (2006). Defendants are correct that IIRIRA divests courts of jurisdiction to review “any individual determination or to entertain any other cause of action or claim arising from or relating to the implementation or operation of an order” of expedited removal, except as provided in 8 U.S.C. § 1252(e). See 8 U.S.C. § 1252(a)(2)(A)(i). It is also true that “no court shall have jurisdiction to review” any “procedures and policies adopted” by USCIS “to implement the” expedited review provisions of the IIRIRA, except as provided in 8 U.S.C. § 1252(e). Id . § 1252(a)(2)(A)(iv). Defendants incorrectly assert, however, that § 1252(e) permits this Court to consider only “whether the petitioner is an alien, whether the petitioner was actually ordered removed, or whether the petitioner can provide that he or she was lawfully admitted as a permanent resident, refugees, or asylee.” Dkt. 17 at 30. Implicit in Defendants’ argument is the suggestion that § 1252(e)(2)—the provision governing “habeas corpus proceedings”—constitutes the exclusive avenue of judicial recourse once the affected person is subject to an order of expedited removal. But that premise ignores the very next paragraph of § 1252(e)—entitled “challenges on validity of the system”—which providеs for judicial review of systemic challenges to the expedited removal system and its implementing regulations or written policies.
Section 1252(e)(3) provides, in relevant part:
(A) In general
Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of—
(i) whether such section, or any regulation issued to implement such section, is constitutional; or
(ii) whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.
(B) Deadlines for bringing actions
Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure . . . is implemented.
8 U.S.C. § 1252(e)(3). [4] Under § 1252(e)(3), a court has jurisdiction to review “determinations” made in the expedited removal context if three conditions are satisfied: First, the plaintiff must challenge the constitutionality or lawfulness of § 1225(b)—IIRIRA’s expedited removal provision—or the constitutionality or lawfulness of “a regulation, written policy directive, written policy guidance, or written procedure” adopted to implement that provision. 8 U.S.C. § 1252(e)(3)(A). Second, the challenge must be “instituted in the United States District Court for the District of Columbia.” Id. Third, the action “must be filed no later than 60 days after the date the challenged section, regulation, directive, guidance, or procedure . . . is first implemented.” § 1252(e)(3)(B).
With one exception discussed below, the individual Plaintiffs’ claims satisfy all three conditions. Plaintiffs brought this action in the correct jurisdiction within 60 days of issuance of the Asylum Directives. The directives set forth in the July 2 memorandum were implemented on July 8, 2019, see AR 113, and Plaintiffs filed suit in this Court 60 days later, on September 6, 2019. Dkt. 1. The suit also challenges the lawfulness of two “written policy directive[s],” “policy guideline[s],” or “procedure[s],” 8 U.S.C. § 1252(e)(3)(A)(ii)—the reduced-time-to- consult and prohibition-on-extensions directives are mеmorialized in the July 2 memorandum and are also reflected in USCIS’s “Credible Fear Procedures Manual.” AR 113–17. Thus, the individual Plaintiffs’ claims fall squarely within the plain terms of § 1252(e)(3).
Had Congress intended to close the door to judicial review on aliens who are subject to
final orders of expedited removal even when their challenges satisfy the requirements of
§ 1252(e)(3)—as Defendants contend—it knew how to say so. Section 1252(a)(2)(C), for
example, provides that, with an exception not relevant here, “no court shall have jurisdiction to
review a final order of removal against an alien who is removable by reason of having
committed” certain criminal offenses. 8 U.S.C. § 1252(a)(2)(C). Although Congress provided
that “no Court shall have jurisdiction to review . . . any individual determination or to entertain
any other cause or claim arising from or relating to the implementation or operation of an
[expedited] order of removal,” it included an express carve out for claims brought “as provided
in [§ 1252(e)].” § 1252(a)(2)(i);
see also id.
§ 1252(a)(5) (reiterating the carve out for
challenges pursuant to 8 U.S.C. § 1252(e)). Thus, the statute expressly contemplates that aliens
may seek judicial review of written directives implementing the expedited removal system if the
aliens satisfy the conditions set out in § 1252(e).
See AILA
,
Defendants’ contention that § 1252(e) strips the Court of jurisdiction over the individual
Plaintiffs’ challenge is also is at odds with the D.C. Circuit’s decision in
American Immigration
Lawyers Association v. Reno
,
Defendants do advance one persuasive argument, however. That argument takes aim at
Plaintiffs’ challenge to the portion of the Asylum Directives that, Plaintiffs say, discontinued
USCIS’s policy of “providing an oral, in-person legal orientation to those detained at the Dilley
Detention Center.”
See
Dkt. 1 at 47 (Compl. ¶ 155). As Defendants note, the problem with
Plaintiffs’ challenge to the in-person-orientation directive is that § 1252(e)(3)(A)(ii) only
provides this Court with jurisdiction to review “
written
policy directive[s],
written
policy
guideline[s], or
written
procedure[s],” 8 U.S.C. § 1252(e)(3)(A)(ii) (emphasis added), and,
according to the declaration of USCIS’s Deputy Chief of the Asylum Division, “USCIS has not
promulgated, authorized or implemented any
written
policy that there shall not be an in person
legal orientation for individuals seeking asylum at the Dilley Family Residential Center or any
other location.” Dkt. 17-1 at 3 (Caudill-Mirillo Decl. ¶ 4) (emphasis added). The Court “must
give effect, if possible, to every . . . word of [the] statute,”
Williams v. Taylor
,
Article III Standing
“Because Article III limits federal judicial jurisdiction to cases and controversies,
see
U.S. Const. art. III, § 2, federal courts are without authority” to decide disputes unless the
plaintiff has standing—that is, “a personal stake in the outcome of the controversy [sufficient] to
warrant [
her
] invocation of federal-court jurisdiction.”
Chamber of Commerce v. EPA
, 642 F.3d
192, 199 (D.C. Cir. 2011) (quoting
Summers v. Earth Island Inst.
,
Defendants do not dispute that the Asylum Directives limited the time the individual Plaintiffs had to prepare and to consult before their credible-fear interviews took place. Instead, they argue that the individual Plaintiffs allege a violation of their “procedural” rights—their rights to have an opportunity meaningfully to consult with others and to prepare before their credible-fear interviews—but have failed to show that they have suffered any concrete injury as a result of that alleged procedural violation. See Dkt. 17 at 27. In other words, according to Defendants, the individual Plaintiffs “have not offered any tangible proof that the July 2 changes to the consultation period and the standard governing continuances would have had any impact on the outcome of thеir credible-fear interviews,” id. , and have therefore failed to “satisfy the traceability [and] redressability” elements of Lujan , id.
Defendants’ argument misunderstands how standing is analyzed in procedural-rights
cases. Although every case brought in an Article III court must satisfy the three “irreducible”
elements of standing, a “person who has been accorded a procedural right to protect his concrete
interests can assert that right without meeting all the normal standards for redressability and
immediacy.”
Lujan
,
As a starting point, a party asserting a procedural right must—like any other plaintiff—
identify a “particularized injury” resulting from the government’s contemplated action.
See Fla.
Audubon Soc’y v. Bentsen
,
The individual Plaintiffs have also satisfied the causation prong of
Lujan
. To establish
causation in a procedural-rights case, the plaintiff must establish “two causal links: ‘one
connecting the omitted [procedural step] to some substantive government decision that may have
been wrongly decided because of the lack of [that procedural requirement] and one connecting
that substantive decision to the plaintiff’s particularized injury.’”
Ctr. for Biological Diversity v.
EPA
,
Here, uncontroverted declarations proffered by the individual Plaintiffs establish that the
denial of their asserted right to consult and to prepare for their credible-fear interviews was
“connected to the substantive result.”
Ctr. for Biological Diversity
,
The individual Plaintiffs’ alleged injuries are also redressable under the “relaxed
redressability requirement” that applies in procedural-rights cases.
Ctr. for Biological Diversity
,
Even setting this precedent aside, however, any redressability question raised by the
individual Plaintiffs’ FVRA claim is put to rest by the principle that courts must assume, for
purposes of assessing standing, that the Plaintiffs will prevail on the merits.
See Cutler v. U.S.
Dep't of Health & Human Servs.
,
* * *
The Court, accordingly, concludes that it has statutory jurisdiction over the individual
Plaintiffs’ claims and that they have Article III standing. Having reached that conclusion, the
Court need not decide whether RAICES also has standing to pursue those same claims and to
seek the same relief.
See Town of Chester, N.Y.
,
Merits
Plaintiffs challenge the Asylum Directives on a variety of grounds, several of which carry considerable force. [6] The Court need reach only one of those grounds, though, because it is sufficient to resolve the case. That challenge asserts that the Asylum Directives were issued by Cuccinelli in his capacity as acting Director of USCIS; that Cuccinelli was not lawfully appointed to that position under the FVRA and thus lacked the authority to issue the Directives; and that, accordingly, the Directives are invalid and without legal force or effect. As explained below, the Court agrees and will, accordingly, set aside the reduced-time-to-consult and prohibition-on-extensions directives.
1. Constitutional and Statutory Framework
The Appointments Clause provides that the President “shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint . . . Officers of the United States,” unless
“the Congress . . . by Law vest[s] the Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of the Departments.” U.S. Const.
art. II, § 2, cl. 2. Principal officers, in other words, must be appointed by the President, with the
advice and consent of the Senate, and inferior officers must be appointed in that same manner,
unless Congress supplants that default rule by vesting the appointment power in the President, a
court, or a department head.
Edmond
,
The fact that an officer holds a PAS office does not mean, however, that one who
performs the duties of that office in an acting capacity is also a PAS officer. The Supreme Court
has long recognized that, when a “subordinate officer is charged with the performance of the
duty of the superior for a limited time, and under special and temporary conditions, he is not
thereby transformed into the superior and permanent official.”
United States v. Eaton
, 169 U.S.
331, 343 (1898). Consistent with this understanding, Congress has provided the Executive
Branch with the means of filling vacancies in PAS offices on a temporary basis since the earliest
days of the Republic.
See SW General, Inc.
,
Although Congress enacted the first of these laws in 1792,
see
Act of May 8, 1792, ch.
37, § 8, 1 Stat. 281;
see also SW General, Inc
.,
The current iteration of the Vacancies Act, the FVRA, follows that structure. It provides that a vacancy in a PAS office can be filled in one of three ways. First, absent action by the President, “the first assistant to the office of such officer [who has died, resigned, or is otherwise unable to perform the functions and duties of the office] shall perform the functions and duties of the office temporarily in an acting capacity,” subject to certain limitations. 5 U.S.C. § 3345(a)(1) (emphasis added). Second, “the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office,” again subject to certain limitations. Id . § 3345(a)(2). Third, “the President (and only the President) may direct an officer or employee of” the agency experiencing the vacancy “to perform the functions and duties of the vacant office,” but only if that individual served in a senior position in that agency for at least 90 days “during the 365-day period preceding” the occurrence of the vacancy. [7] § 3345(a)(3).
2.
Application of the FVRA to Cuccinelli’s Appointment
The parties agree that the question whether Cuccinelli was lawfully appointed to serve as
the acting Director of USCIS is answered, one way or another, by the FVRA. Within that
framework, the parties focus their arguments on the question whether, as Plaintiffs contend,
see
Dkt. 12 at 34, the first-assistant default rule applies only to individuals serving as first assistants
at the time the vacancy arises or, as Defendants contend,
see
Dkt. 17 at 38, the default rule also
applies to individuals first appointed to the position of first assistant after the vacancy in the PAS
office arises. That dispute poses a difficult question that the Office of Legal Counsel has
answered differently at different times,
compare
The Court starts, as it must, the with the statutory text.
See Hughes Aircraft Co. v.
Jacobson
,
(a) If an officer of an Executive agency . . . whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—
(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346; (2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or (3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—
(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and (B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule.
5 U.S.C. § 3345(a). Here, because the acting Secretary—and not the President—directed that Cuccinelli serve as the acting Director, and because he did not hold another PAS position at the time of his designation and had not previously served as an officer or employee of the Department of Homeland Security or USCIS, §§ 3345(a)(2) and (a)(3) are plainly inapt. Plaintiffs’ challenge to Cuccinelli’s status as acting Director of USCIS, accordingly, rises or falls based on whether Cuccinelli was “the first assistant to the office of [the] officer” who resigned— that is, the office of former-USCIS Director Cissna.
Because the FVRA does not provide a statutory definition of the phrase “first assistant,”
see
Federal Vacancies Reform Act of 1998, S. Rep. No. 105-250 at 12 (July 15, 1998)
(hereinafter “Senate Report”), the Court must construe that phrase “in accordance with its
ordinary or natural meaning,”
FDIC v. Meyer
,
Defendants fail to address this fundamental problem with Cuccinelli’s designation. Instead, they argue that the default rule does not require that an individual have served as the assistant to the particular PAS officeholder who left, thereby creating the vacancy; it is enough, in their view, that the acting official hold an office that is subordinate to the PAS office , even if that office was vacant at the time of the acting official assumed the position of “first assistant.” Dkt. 17 at 38–39. As noted above, the soundness of that contention is far from settled. But, for present purposes, the Court need not decide that question because, even under Defendants’ reading of the statute, Cuccinelli does not hold an office that was or that ever will serve as the “first assistant” to the office of the USCIS Director. The office of Principal Deputy Director was created after the vacancy in the office of the Director arose; that office was nominally designated as the office of the “first assistant” to the Director after the vacancy arose; and it will cease to exist as the office of the “first assistant” as soon as the PAS vacancy is filled. See Dkt. 17-4 at 5, 7 (Blackwell Decl., Ex. 1, Ex. 2). Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security’s order of succession may designate the office of the Principal Deputy Director as the “first assistant” to the Director. But labels—without any substance—cannot satisfy the FVRA’s default rule under any plausible reading of the statute. [8]
Defendants make a second argument that fails for the same reason. That argument focuses on § 3345(b)(1), which provides as follows:
(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person— (i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such office for less than 90 days; and (B) the President submits a nomination of such person to the Senate for appointment to such office.
5 U.S.C. § 3345(b)(1). Subject to an exception not relevant here, this provision prevents a
person from serving “as an acting official while nominated to fill the [vacant] office if the person
was not the first assistant to the office for at least 90 of the 365 days preceding the vacancy.”
SW
General, Inc
.,
Defendants contend that § 3345(b)(1) makes sense only if it is possible for someone who
is appointed to serve as the first assistant after the vacancy arose to serve in an acting capacity
under § 3345(a)(1). Otherwise, Defendants contend, there was no reason for Congress to declare
that, “[n]otwithstanding subsection (a)(1),” a first assistant who is nominated by the President to
fill the PAS position may not serve as the acting officer if he did not serve as the first assistant
“during the 365-day period preceding the date of the” vacancy.
See
Dkt. 17 at 42. That
contention reads too much into the “notwithstanding” clause, which is merely a clarifying clause
that does not speak to the scope of § 3345(a)(1).
See SW General, Inc.
,
Historical practice can, at times, aid in defining phrases that Congress has used and
reused in a series of statutory enactments. Nothing in the historical record of the Vacancies Act,
however, counsels in favor of construing the phrase “first assistant” to include those who hold
the title of “first assistant” but occupy an office that, in actuality, was not, is not, and never will
be subordinate to the principal office. To the contrary, as recently as 1978, the Department of
Justice “interpreted the term ‘first assistant’ as applying only to officials whose appointment has
been specifically provided for by statute,”
At oral argument, the Court asked counsel for Defendants whether, prior to enactment of the FVRA, there was any example of a person that became the “first assistant” to a PAS office after it became vacant ( i.e. , a “post-vacancy” first assistant) and thereby assumed the duties of the vacant PAS office. Dkt. 24 at 98–99 (Mot. Hr’g Tr. 98:19–99:4). Defendants answered the Court’s question in their supplemental brief, asserting that “the historical record prior to the FVRA’s enactment does not reveal a substantial practice of naming post-vacancy first assistants under the Vacancies Act.” Dkt. 25 at 18 n.4. The absence of a “substantial practice” is putting it mildly—in fact, Defendants failed to identify a single example of a post-vacancy first assistant serving in an acting capacity prior to enactment of the FVRA. That history casts some doubt on whether Congress intended the phrase “first assistant” to encompass those appointed to the first- assistant position after the vacancy arose. But this case goes far beyond that scenario and pushes doubt to disbelief. There is no evidence that at any time prior to Cuccinelli’s appointment did Congress or the Executive Branch imagine that an agency could create a new position after a vacancy arose; could then alter the agency’s order of succession to treat that new position as the “first assistant” to the vacant office; and could further specify that all would return to its original state once the PAS vacancy was filled.
The structure and purpose of the FVRA further confirm that Cuccinelli was not lawfully
designated to serve as the acting Director of USCIS.
See Food Mktg. Inst. v. Argus Leader
Media
,
Defendants’ reading of the FVRA would decimate this carefully crafted framework. The President would be relieved of responsibility and accountability for selecting acting officials, and the universe of those eligible to serve in an acting capacity would be vastly expanded. Except when the first assistant position is fixed by statute, the agency head—or, at times, even a subordinate agency official—could create a new office after the vacancy arose, designate that office as the “first assistant” to the vacant office, and fill the office with nearly anyone, regardless of whether that person had received prior Senate approval through the confirmation process and without regard to her seniority, experience, or tenure. One is left to wonder, if Congress had intended—or even imagined—such a result, why would it have gone to the trouble of requiring that “the President (and only the President)” act in order to overcome the default rule and why would it have limited the pool of potential presidential designees to PAS officials and senior officials who had served in the agency at issue for at least 90 days in the year before the vacancy arose?
It is not an answer to say, as Defendants posited at oral argument,
see
Dkt. 24 (Mot. Hr’g
Tr. 88:9–17), that paragraphs (a)(2) and (a)(3) have meaning at least as applied to first assistant
positions created by statute, thus avoiding the risk of Executive Branch overreaching. Congress
enacted the FVRA, in large part, to “recla[im]” its “Appointments Clause power,”
SW General,
Inc
.,
* * *
For all of these reasons, the Court concludes that Cuccinelli was designated to serve as the acting Director of USCIS in violation of the FVRA.
C. Remedy
That leaves the question of remedy.
1. Asylum Directives
The first form of relief that Plaintiffs seek is invalidation of the Asylum Directivеs, Dkt. 12 at 35—a form of relief that is necessarily circumscribed by the Court’s conclusion that it lacks statutory jurisdiction to consider Plaintiffs’ challenge to the in-person-orientation Directive, see supra Part II.A. In support of this request, Plaintiffs press two arguments, which the Court will consider in turn.
a. FVRA
Plaintiffs’ first argument turns on whether Cuccinelli was performing a “function or duty” of the vacant office—that is, whether the Director’s issuance of a written policy governing General . . . .”); 28 C.F.R. § 0.137(b) (requiring by regulation that the principal deputy in each PAS office within the Department of Justice serve as first assistant and, “[w]here there is no position of [p]rincipal [d]eputy to the PAS office,” providing that the Attorney General will designate a first assistant in writing).
how USCIS processes credible-fear determinations is a “function or duty” of the USCIS Director office within the meaning of the FVRA. Under the FVRA’s vacant-office provision, if a person is not lawfully serving in conformity with the FVRA, “[a]n action taken” by that person “in the performance of any function or duty of [the] vacant office . . . shall have no force or effect” and “may not be ratified.” 5 U.S.C. § 3348(d)(1)–(2) (emphasis added); but cf. id. § 3348(e) (exempting certain offices not at issue here). The phrase “function or duty,” in turn, is defined as follows:
(2) the term “function or duty” means any function or duty of the applicable office that—
(A) (i) is established by statute; and
(ii) is required by statute to be performed by the applicable officer (and only that officer); or
(B) (i)(I) is established by regulation; and (II) is required by such regulation to be performed by the applicable officer (and only that officer); and
(ii) includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180-day period preceding the date on which the vacancy occurs.
5 U.S.C. § 3348(a)(2)(A).
Plaintiffs argue that, in issuing the Asylum Directives, Cuccinelli performed a “function” of the USCIS Director office. As Plaintiffs and amicus curiae explain, and as Defendants do not dispute, Cuccinelli promulgated the Directives at issue pursuant to 6 U.S.C. § 271, see Dkt. 12 at 35; Dkt. 15 at 25; Dkt. 28 at 18, which assigns to the Director of USCIS the “[f]unctions” of (1) “establish[ing] the policies for performing [the] functions . . . transferred to the Director” by the Homeland Security Act “or otherwise vested in the Director by law,” 6 U.S.C. § 271(a)(3)(A), and (2) “establish[ing] national immigration services policies and priorities,” id. § 271(a)(3)(D); see also id. § 113(a)(1)(E) (establishing the PAS position of Director of the Bureau of Citizenship and Immigration Services, which was later renamed USCIS). Those functions, accordingly, are assigned by statute to the office of the USCIS Director, and they are not assigned by statute to any other office. In other words, according to Plaintiffs and amicus curiae, the function at issue is assigned by statute to the USCIS Director and only to the USCIS Director.
Although Defendants do not directly contest any of this, see Dkt. 25 at 1, 19 (arguing only that the Asylum Directives “could be ratified by another official”); id. at 20 (asserting that “relief should be limited to vacatur of the challenged Policies”), they do hint at a potential response in previewing a different argument that they might make at some point in the future. In a single page of their supplemental brief, Defendants assert that, even if the Court concludes that the directives were promulgated without legal authority, they “could be ratified by another official.” Dkt. 25 at 19. As Defendants acknowledge, no one has even attempted to ratify the directives and, accordingly, the question of ratification is hypothetical and not ripe for consideration. Id. Defendants’ ratification argument does have some bearing on the question currently before the Court, however, because the same definition of “function or duty” applies both to the provision that renders actions taken by those serving in violation of the FVRA to have “no force or effect” and to the provision that precludes ratification of any such action. Compare 5 U.S.C. § 3348(d)(1) with id. § 3348(d)(2).
Under Defendants’ reading of the statute, the phrase “function or duty” includes only “non-delegable duties”—that is, only those duties that are assigned to a single official and that may not be reassigned. See Dkt. 25 at 19. From that premise, Defendants then argue, or at least suggest, that no function or duty assigned to any Department of Homeland Security official other than the Secretary constitutes a “function or duty” within the meaning of the vacant-office provision of the FVRA. That follows, according to Defendants, because the Department’s organic statute vests “[a]ll functions of all officers, employees, and organizational units of the Department” in the Secretary, 6 U.S.C. § 112(a)(3), and authorizes the Secretary to delegate any of his “functions to any officer” within the Department,” id. § 112(b)(1). See Dkt. 25 at 19. Put differently, in Defendants’ view, the functions assigned to the USCIS Director by the Homeland Security Act are not functions “required . . . to be performed by [the USCIS Director] . . . and only that officer ” because the Department’s organic statute vests the Secretary with all the functions and duties of the Department. Because similar vesting and delegation statutes can be found throughout the Executive Branch, see Dkt. 28 at 19 n.6 (noting that “[e]very cabinet-level department has some version of [the Department’s] vesting and delegation statutes”), [11] the logic of this position would cover all (or almost all) departments subject to the FVRA.
In considering these arguments, the Court starts, once again, with the statutory text.
See
Ross v. Blake
,
First, the vacant-office provision specifies that, “[u]nless an officer or employee is performing the functions and duties” of the vacant office in accordance with the FVRA’s appointment requirements, 5 U.S.C. § 3345, its time limitations, id. § 3346, and its exclusivity provision, id . § 3347, “the office shall remain vacant” and, in the case of a subcabinet office, “only the head of such Executive agency may perform any function or duty of such office.” § 3348(b). Significantly, this fallback provision presupposes that the head of the department will have authority to discharge the functions and duties of the vacant, subcabinet office. But, if Defendants’ understanding of the “functions or duties” of an office were accepted, the fallback would be rendered meaningless. It would apply only to cases, if any, where the relevant subcabinet office is the sole office permitted to perform the “functions or duties” at issue and where the department head’s vesting-and-delegation authority is insufficient to overcome that exclusive assignment of authority. And, more importantly, unless the vacant-office provision is implausibly read as an affirmative grant of authority otherwise denied to the department head, the fallback provision would apply only in circumstances where the department head has no authority to perform the functions of the vacant office. In other words, the fallback provision, which requires the department head to perform the functions of the vacant office, would apply only in those circumstances in which the department head lacks statutory authority to perform those functions.
This conundrum is avoided by reading the definition of “functions or duties” and fallback provisions in tandem. “[I]nterpretation of a phrase of uncertain reach” should not be “confined to a single sentence”—or here, two sentences, see 5 U.S.C. § 3348(a)(2)(A)(ii) & (B)(i)(II)—“when the text of the whole statute gives instruction as to its meaning,” Maracich v. Spears , 570 U.S. 48, 65 (2013). Here, any ambiguity in the meaning of “and only that officer” is resolved by reading that phrase in light of the fallback. The inclusion of a fallback in the statutory scheme accords with the fact that agency organic statutes typically vest “[a]ll functions of all officers, employees, and organizational units of the [d]epartment” in the department head, see, e.g. , 6 U.S.C. § 112(a)(3); 28 U.S.C. § 509, and mandates that the department head exercise that authority with respect to the “functions and duties” of a vacant office, 5 U.S.C. § 3348(b). It follows that, however narrowly defined, the functions or duties of a subcabinet office must include the duties specifically assigned by statute to that office, even if the department’s organic statute generally vests the department head with all functions of the department. That is, the mere fact that a department head is also vested with all functions specifically vested in other department officers and employees cannot, standing alone, defeat the enforcement mechanisms found in the FVRA’s vacant-office provision.
A second textual clue supports this same conclusion and further clarifies what the statute allows and what it precludes. In enacting the FVRA, Congress recognized the need for administrative flexibility, see Senate Report at 13, and did not withdraw the vesting-and- delegation authority of the Executive Branch departments and agencies. But it also recognized that few PAS positions have “any meaningful statutory duties” and that the duties of these offices are, instead, defined by “internal departmental regulations” that “can be changed at will without undergoing the notice and comment process.” [12] Id. at 18. To avoid circumvention of the vacant-office provision, Congress, accordingly, added a 180-day lookback to the definition of regulatorily assigned functions or duties. See 5 U.S.C. § 3348(a)(2)(B)(ii). The lookback provision thus defines the functions or duties of a vacant office to include those that were established by regulation and are “in effect at any time during the 180-day period preceding the date on which the vacancy occurs.”
The 180-day regulatory lookback is at odds with Defendants’ contention that the statutory definition of “functions or duties” reaches only those duties that the agency may not reassign— that is, those duties that are, in accordance with Defendants’ lexicon, “non-delegable.” Dkt. 25 at 19. Contrary to Defendants’ reading of the statute, the lookback provision contemplates that agencies may and will use their organic authorities to issue rules reassigning duties and that duties subject to that authority may, at least at times, fall within the statutory definition of “functions or duties.” What matters under the vacant-office provision is whether the rules— i.e ., the delegations and assignments—as they existed “at any time during the 180-day period preceding the date on which the vacancy occurs,” 5 U.S.C. § 3348(a)(2)(B)(ii), assigned the functions or duties to the vacant office and “only [to] that office[,]” id. § 3348(a)(2). If so, then the statutory definition of “function or duty” is satisfied, and actions taken by a person who is not serving in conformity with the FVRA “in the performance of [that] function or duty” have “no force or effect.” 5 U.S.C. § 3348(d).
The only support Defendants offer for their more sweeping “non-delegable” argument is
a citation to the D.C. Circuit’s decision in
Guedes v. ATF
,
Finally, Defendants’ construction of the vacant-office provision is at odds with the
statutory purpose of the FVRA. As Plaintiffs note, “[e]very cabinet-level department has some
version of [a] vesting and delegation statute[].” Dkt. 28 at 19 n.6 (collecting statutory vesting
and delegation statutes). It was the pervasive use of those vesting-and-delegation statutes, along
with “the lack of an effective enforcement process,” that convinced Congress of the need to enact
the FVRA. Senate Report at 7. Yet, if Defendants were correct that the mere existence of these
vesting-and-delegation statutes (and the absence of an express statutory bar on vesting and
delegating a specific function or duty) were sufficient to negate the enforcement mechanisms
Congress included in the FVRA, Congress would have done little “to restore [the]
constitutionally mandated procedures that must be satisfied before acting officials may serve in
positions that require Senate confirmation.” Senate Report at 8;
see also U.S. Telecom Ass’n v.
FCC
,
The Court recognizes that requiring department heads to perform the functions or duties of a vacant office could impose substantial burdens on those who already labor under enormous responsibilities. That choice, however, is not the Court’s, but Congress’s. Nor is the Executive Branch without tools to address this concern. In most circumstances, departments and agencies can avoid this burden if the first assistant lawfully assumes the acting role pursuant to § 3345(a)(1), or if the President directs that a PAS officer or eligible senior agency official assume that role pursuant to §§ 3345(a)(2) or (a)(3), respectively. When the 210-day clock on service of an acting official nears expiration, moreover, the President can extend thе period by submitting a nomination for the vacant PAS office to the Senate. 5 U.S.C. § 3346(a). If that nomination is rejected, withdrawn, or returned, the acting official may serve for another 210 days, and, if a second nomination is submitted, she may continue to serve until that nominee is confirmed or for 210 days after the nomination is rejected, withdrawn, or returned.” Id . at § 3346(b). Department heads and other officials may also delegate duties to multiple officials, so long as they do so 180 days before the vacancy arises. Id . § 3348(a)(2)(B)(ii). The Court’s holding, moreover, is a narrow one: the Court merely concludes that where, as here, a statute assigns a function to a single PAS office, and where, as here, the department head did not reassign that function using his vesting-and-delegation authority or any other authority at least 180 days before the vacancy occurred, that function is a “function or duty” of the vacant PAS office within the meaning of § 3348, and it must be performed either by a properly serving acting official or by the department head.
b. APA
The Court, in any event, is also persuaded by Plaintiffs’ alternative theory—that, because
Cuccinelli was exercising the authority of the USCIS Director in violation of the FVRA, the
directives were not issued “in accordance with law,” and must, accordingly, be set aside under
the APA. Dkt. 12 at 35 (quoting 5 U.S.C. § 706(2)(A)). The D.C. Circuit’s decision in
SW
General, Inc. v. NLRB
,
Under the first such rule, the APA’s “rule of prejudicial error,” 5 U.S.C. § 706, reviewing
courts must consider whether the agency’s error affected the outcome.
Jicarilla Apache Nation
v. U.S. Dep’t of Interior
,
Under the second such rule, the
de facto
officer doctrine, a court may “confer[] validity
upon acts performed by a person acting under the color of official title even though it is later
discovered that the legality of that person’s appointment or election to office is deficient.”
Id.
at
81 (quoting
Ryder v. United States
,
First, the plaintiff must bring his action at or about the time that the challenged
government action is taken. Second, the plaintiff must show that the agency or
department involved has had reasonable notice under all of the circumstances of
the claimed defect in the official’s title to office.
at 81–82 (quoting
Andrade v. Lauer
,
promptly brought suit within 60 days of the challenge action, and Defendants do not challenge the timeliness of the suit. Moreover, the Department had notice of the claimed defect in Cuccinelli’s service as early as June 18, 2019—eight days after Cuccinelli took office and before he issued the Asylum Directives—when the House Committee on the Judiciary sent acting Secretary McAleenan a letter expressing “deep concern” that “Cuccinelli was appointed in a manner that circumvents the [FVRA].” See U.S. House of Representatives, Committee on the Judiciary, Letter to Acting Secretary Kevin McAleenan (June. 18, 2019), available at https://tinyurl.com/s9xlzyy (last accessed Feb. 28, 2020). [14] The de facto doctrine—which in any event was not raised as a defense, see Dkt. 25 at 19 n.5—would thus not pose a barrier to Plaintiffs’ challenge.
* * *
Thus, under either theory—application of the FVRA vacant-office provision or general
principles of administrative lаw—the reduced-time-to-consult and the prohibition-on-extensions
directives “have no force or effect,” 5 U.S.C. § 3348(d)(1), and must be “set aside” as action
taken “in excess of statutory . . . authority,” 5 U.S.C. § 706. As Defendants acknowledge
binding D.C. Circuit precedent requires that, “[w]hen a reviewing court determines that agency
regulations are unlawful, the ordinary result is that the rules are vacated—not that their
application to the individual [plaintiffs] is proscribed.” Dkt. 25 at 23 n.6 (quoting
Nat’l Mining
Ass’n v. U.S. Army Corps of Eng’rs
,
2. Removal Orders
Plaintiffs also request that the Court set aside their individual removal orders “as well as
those of any asylum seekers who were processed under the Directives but have not yet been
removed.” Dkt. 28 at 26. Starting with the five remaining individual Plaintiffs, the Court must
once again consider the “rule of prejudicial error.” 5 U.S.C. § 706. At this point, the question is
not simрly whether the Directives would have issued in the same form even if Koumans had not
been replaced by Cuccinelli as acting Director, but whether the five individual Plaintiffs were
prejudiced by the resulting reduced time to consult and to prepare for their credible-fear
interviews. Having reviewed Plaintiffs’ extensive declarations, and given the minimal burden
required to establish prejudicial error,
Jicarilla Apache Nation
,
As a practical matter, this also means that their removal orders are deficient. If an alien indicates an intention to apply for asylum, expedited removal requires that an asylum officer conduct a credible-fear interview of any alien seeking asylum, and that has yet to occur here. See 8 U.S.C. § 1225(b)(1)(A)(ii). Until a legally sufficient interview occurs, the individual Plaintiffs are not subject to expedited removal. The Court will, accordingly, vacate their negative credible-fear determinations (and any removal orders that are premised on those determinations) and will remand their cases to USCIS for further proceedings consistent with this decision.
The Court is unconvinced, however, that it should extend this relief to other asylum seekers who were processed under the defective directives. Those individuals are not parties to this case, nor is this case a class action. This Court’s jurisdiction, moreover, is limited to claims brought challenging “determinations” made under the expedited removal provision of IIRIRA within 60 days of promulgation of the allegedly unlawful regulation or policy. 8 U.S.C. § 1252(e)(3). To be sure, the Court has concluded that the two directives are invalid and must be set aside. The consequences of that holding with respect to parties not before the Court, however, lies beyond this Court’s jurisdiction. See id. § 1252(a)(2) (“[N]o court shall have jurisdiction to review . . . any individual determination . . . except as prоvided in subsection (e)”); see also id. § 1252(e)(1) (“[N]o court may . . . certify a class under Rule 23 of the Federal Rules of Civil Procedure in any action for which judicial review is authorized” under 8 U.S.C. § 1252(e)). The Court will, accordingly, deny Plaintiffs’ request to vacate the removal orders— or any negative credible-fear determinations—with respect to those who are not parties to this action.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Plaintiffs’ partial motion for summary judgment, Dkt. 29, and GRANTS in part and DENIES in part Defendants’ partial motion for summary judgment, Dkt. 30. The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-on- extensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the in- person-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-to- consult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.
SO ORDERED.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: March 1, 2020
Notes
[1] MS-13 is a transnational criminal organization. See Dkt. 12 at 44.
[2] Defendants have agreed not to remove any of the named Plaintiffs pending the adjudication of this motion. See Dkt. 8.
[3] Earlier in the proceeding, Defendants also argued that the claims brought by two additional plaintiffs, S.G.-C and B.O.-G, were moot because their negative credible-fear determinations were overturned. Dkt. 17 at 22. That point was well taken. After oral argument on Plaintiffs’ motion for a preliminary injunction, Plaintiffs voluntarily dismissed those Plaintiffs from the case pursuant Federal Rule of Civil Procedure 41(a)(1)(A)(i). Dkt. 23.
[4] Although IIRIRA refers to actions taken “by or under the authority of the Attorney General,” 8 U.S.C. § 1252(e)(3), those authorities were transferred to the Department of Homeland Security and USCIS following the creation of those agencies and the reassignment of responsibility for implementing the immigration laws from the INS to the Department of Homeland Security and USCIS. See , e.g. , Homeland Security Act оf 2002, Public Law 107–296, § 451(b)(3), 116 Stat. 2135, 2196 (transferring “function” of “adjudications of asylum . . . applications” from the Commissioner of the INS to the Director of the Bureau of Citizenship and Immigration Services, which eventually became USCIS).
[5] Defendants may not rely on the contention that Plaintiffs’ claims are not redressable because the individual Plaintiffs are subject to expedited orders of removal. Dkt. 17 at 30. As explained above, Defendants are incorrect —at least with respect to the reduced-time-to-consult and prohibition-on-extensions directives—that § 1252(e) strips this Court of jurisdiction to review the individual Plaintiffs’ claims.
[6] In light of the Court’s conclusion that it lacks statutory jurisdiction to consider Plaintiffs’ challenge related to the in-person-orientation directive, the Court will use the phrase “Asylum Directives” to refer only to the reduced-time-to-consult and prohibition-on-extensions directives for the remainder of this opinion.
[7] Specifically, the employee must be employed in a position for which the rate of pay “is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.” 5 U.S.C. § 3345(a)(3)(B).
[8] To borrow from a long-running riff on the television show The Office , there may well be a difference between one who serves as “the assistant regional manager” and “the assistant to the regional manager.” But either way, that person is, at best, second in command. Here, the acting Secretary created a position that is second in command in name only.
[9] See Senate Report at 12 (“Under this legislation, when an acting officer is to be designated, as opposed to automatically gaining acting status as a first assistant, only the President may designate an acting officer in a position that requires Senate confirmation.”); id. at 13 (“This provision allows the President limited flexibility in appointing temporary officers, restricting the pool to persons who have already received Senate confirmation for their current position.”); see also Administrative Conference of the United States, Acting Agency Officials and Delegations of Authority 1 (Dec. 1, 2019) (noting that there are over 1,200 PAS positions in the Executive Branch), available at https://www.acus.gov/sites/default/files/documents/final-report-acting- agency-officials-12012019.pdf.
[10] See, e.g ., 28 U.S.C. § 504 (“The President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Deputy Attorney General”); Reorganization Plan No. 5 of 1950, § 2 (renaming “The Assistant to the Attorney General” to “Deputy Attorney General”); 28 U.S.C. § 505 (“The President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Solicitor General . . . .”); id. § 506 (“The President shall appoint, by and with the advice and consent of the Senate, 11 Assistant Attorneys
[11] Plaintiffs support that contention with the following examples: 10 U.S.C. § 113(d) (Department of Defense); 20 U.S.C. §§ 3441, 3347, 3472 (Department of Education); 22 U.S.C. § 2651a(a) (Department of State); 28 U.S.C. § 510 (Department of Justice); 31 U.S.C. § 321(b), (c) (Department of the Treasury); 38 U.S.C. §§ 303, 512 (Department of Veterans Affairs); 42 U.S.C. §§ 3534(a), 3535(d) (Department of Housing and Urban Development); 42 U.S.C. §§ 7151, 7152, 7252 (Department of Energy); 43 U.S.C. § 1457c (Department of the Interior); 49 U.S.C. § 322(b) (Department of Transportation); Reorganization Plan No. 5 of 1950, § 2 (Department of Commerce); Reorganization Plan No. 6 of 1950, § 2 (Department of Labor); Reorganization Plan No. 2 of 1953, § 4 (Department of Agriculture); Reorganization Plan No. 3 of 1966, § 2 (Department of Health and Human Services). See Dkt. 28 at 19 n.6.
[12] A delegation of authority to perform defined agency duties may be exempt from the notice-
and-comment process as a rule of “agency organization.”
See
5 U.S.C. § 553(b)(A);
Hogg v.
United States,
[13] Because the NLRB “did not seek certiorari on this issue,” the Supreme Court did “not
consider it.”
SW General, Inc
.,
[14] Although the June 18, 2019 letter is not in the record, the Court takes judicial notice of that public document pursuant to Federal Rule of Evidence 201(b)(2).