L.M.-m. v. Cuccinelli
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
L.M.-M., et al.,
Plaintiffs,
v. Civil Action 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, 424 U.S. 1, 125 (1976) (per curiam)). By
dividing authority between the President and the Senate, the Appointments Clause serves as a
check on both branches of government and a means of “promot[ing] . . . judicious choice[s] of
[persons] for filling the offices of the union.” The Federalist No. 76, at 454–59 (C. Rossiter ed.
1961) (A. Hamilton). “The constitutional process of Presidential appointment and Senate
confirmation, however, can take time,” raising the prospect that the duties and functions assigned
to an office requiring Presidential appointment and Senate confirmation (referred to as a “PAS” office) can go unperformed if the President and Senate “cannot promptly agree on a
replacement.” NLRB v. SW General, Inc., 137 S. Ct. 929, 934–35 (2017). Recognizing this
reality, Congress has, since the early days of the Republic, authorized “the President to direct
certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity,
without Senate confirmation.” Id. at 934.
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., 137 S. Ct. at 934. Subject
to exceptions not relevant here, it sets forth the exclusive means of temporarily filling vacancies
in PAS offices. The default rule under the FVRA is that the “first assistant” to the vacant office
automatically serves as the acting official when a vacancy arises. 5 U.S.C. § 3345(a)(1). That
default rule applies unless the President, and only the President, directs that (1) a person who has
been confirmed by the Senate to serve in another PAS office or (2) an officer or employee of the
agency in question, who has worked for that agency in a senior position for at least 90 of the 365
days preceding the vacancy, “perform the functions and duties of the vacant office temporarily in
an acting capacity.” Id. § 3345(a)(2) and (3). The question presented in this case is whether the
acting Director of the United States Citizenship and Immigration Services (“USCIS”), Kenneth
Cuccinelli II, was appointed in conformity with the FVRA.
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,
2 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.” Id. at 5 (Blackwell Decl., Ex. 1). And
acting Secretary McAleenan specified that the revised order 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
3 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.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
L.M.-M., et al.,
Plaintiffs,
v. Civil Action 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, 424 U.S. 1, 125 (1976) (per curiam)). By
dividing authority between the President and the Senate, the Appointments Clause serves as a
check on both branches of government and a means of “promot[ing] . . . judicious choice[s] of
[persons] for filling the offices of the union.” The Federalist No. 76, at 454–59 (C. Rossiter ed.
1961) (A. Hamilton). “The constitutional process of Presidential appointment and Senate
confirmation, however, can take time,” raising the prospect that the duties and functions assigned
to an office requiring Presidential appointment and Senate confirmation (referred to as a “PAS” office) can go unperformed if the President and Senate “cannot promptly agree on a
replacement.” NLRB v. SW General, Inc., 137 S. Ct. 929, 934–35 (2017). Recognizing this
reality, Congress has, since the early days of the Republic, authorized “the President to direct
certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity,
without Senate confirmation.” Id. at 934.
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., 137 S. Ct. at 934. Subject
to exceptions not relevant here, it sets forth the exclusive means of temporarily filling vacancies
in PAS offices. The default rule under the FVRA is that the “first assistant” to the vacant office
automatically serves as the acting official when a vacancy arises. 5 U.S.C. § 3345(a)(1). That
default rule applies unless the President, and only the President, directs that (1) a person who has
been confirmed by the Senate to serve in another PAS office or (2) an officer or employee of the
agency in question, who has worked for that agency in a senior position for at least 90 of the 365
days preceding the vacancy, “perform the functions and duties of the vacant office temporarily in
an acting capacity.” Id. § 3345(a)(2) and (3). The question presented in this case is whether the
acting Director of the United States Citizenship and Immigration Services (“USCIS”), Kenneth
Cuccinelli II, was appointed in conformity with the FVRA.
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,
2 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.” Id. at 5 (Blackwell Decl., Ex. 1). And
acting Secretary McAleenan specified that the revised order 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
3 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
4 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. Id. 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
prohibition-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.
5 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.” Id. § 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 does not
6 have a credible fear of persecution, “the officer shall order the alien removed from the United
States without further hearing or review.” Id. § 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,
7 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.
Id. 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
8 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, as 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.” Id.
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
9 “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
10 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.
Id. 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
11 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.” Id.
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
12 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 examination, 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.” Id. (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
1 MS-13 is a transnational criminal organization. See Dkt. 12 at 44.
13 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. Id. (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 accepts “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 Defendants have agreed not to remove any of the named Plaintiffs pending the adjudication of this motion. See Dkt. 8.
14 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 15 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, 523 U.S. 83, 94–95 (1998).
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. Id. 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
16 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., 137 S. Ct. 1645, 1651 (2017) (“At least one
plaintiff must have standing to seek each form of relief requested.”).
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,
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.
17 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 favoring judicial review of
administrative action.” Kucana v. Holder, 558 U.S. 233, 251 (2010). Under that principle,
which the courts have “consistently applied to legislation regarding immigration, and particularly
to questions concerning the preservation of federal-court jurisdiction,” if “a statute is reasonably
susceptible to divergent interpretation,” courts must “adopt the reading that accords with the
traditional understanding[]” that “executive determinations are generally subject to judicial
review.” Id. (internal quotations omitted). Here, far from unambiguously foreclosing judicial
review, IIRIRA’s channeling provision, § 1252(e), is best read to permit individual asylum
seekers expeditiously to bring systemic challenges to IIRIRA’s expedited removal provision and
18 its implementing regulations and policies, even if those individuals are subject to final orders of
removal.
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 provides 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—
19 (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.” Id. § 1252(e)(3)(B).
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 of 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).
20 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 memorialized 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)].” Id. § 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, 199 F.3d at 1360 (“Congress meant
to allow litigation challenging the [expedited removal] system by. . . aliens against whom the
21 [expedited removal] procedures had been applied”). The individual Plaintiffs’ challenge is just
such an action.
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, 199 F.3d 1352 (D.C. Cir. 2000), a case that Defendants trumpet in
support of their contention that RAICES lacks statutory standing. See, e.g., Dkt. 17 at 23. In
AILA, the D.C. Circuit addressed a challenge to the expedited removal provision and its
implementing regulations by immigrants’ rights organizations and by individual aliens on the
ground that the statute and regulations violated the constitutional and statutory rights of the
individual plaintiffs and of unnamed aliens who might someday be subject to them. 199 F.3d at
1357. The D.C. Circuit affirmed the district court’s dismissal of the individual plaintiffs on the
ground that they filed suit after the 60-day period established by § 1252(e)(3) had expired. Id.
That left, then, only the claims of the organizational plaintiffs. As to those claims, the D.C.
Circuit rejected the contention that the organizational plaintiffs had standing to sue on behalf of
aliens—who, according to the plaintiffs in that case, could not protect their own rights—because
“nothing [would] prevent[]” “an alien returned to his native country” from bringing a systemic
challenge to IIRIRA and its implementing regulations, so long as suit was brought within 60
days. Id. at 1362–63. But, if Defendants were correct that an alien ordered removed under
§ 1225(b) may sue only under § 1252(e)(2), that pillar of AILA would fall. Indeed, if Defendants
were right, it is difficult to imagine when, if ever, anyone could bring a systemic challenge under
§ 1252(e)(3).
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
22 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, 529 U.S. 362, 404
(2002) (internal quotations and citations omitted), and, accordingly, cannot read § 1252(e)(3)(A)
to reach “unwritten actions” of USCIS, see Khan v. Holder, 608 F.3d 325, 331 (7th Cir. 2010)
(observing that § 1252(e)(3) bars review of “unwritten action” and expressing concerns about
Congress’s decision to immunize unwritten action from judicial review); American Immigration
Lawyers Association v. Reno, 18 F. Supp. 2d 38, 57–58 (D.D.C. 1998), aff’d, 199 F.3d 1352
(same). That conclusion forecloses Plaintiffs’ challenges to the in-person-orientation directive.
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., 555 U.S. 488, 493 (2009)).
“[T]he irreducible constitutional minimum of standing contains three elements”—injury in fact,
causation, and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, 23 injury in fact requires “an invasion of a legally protected interest which is (a) concrete and
particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Id. (internal
quotations and citation omitted). Second, causation requires a “causal connection between the
injury and the conduct complained of.” Id. That is, the injury must be “fairly . . . trace[able] to
the challenged action of the defendant, and not . . . th[e] result [of] the independent action of
some third party not before the court.” Id. (citation omitted) (internal quotes omitted). Finally,
redressability requires a “likel[ihood], as opposed to mere speculati[on], that the injury will be
redressed by a favorable decision.” Id. at 561 (citation omitted) (internal quotes omitted). “The
party invoking federal jurisdiction bears the burden of establishing these elements,” and the
manner and degree of proof required varies based on the stage of the ligation. Id.
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 their 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
24 interests can assert that right without meeting all the normal standards for redressability and
immediacy.” Lujan, 504 U.S. at 572 n.7. Thus, for example, a person “living adjacent to the site
for proposed construction of a federally licensed dam has standing to challenge the licensing
agency’s failure to prepare an environmental impact statement, even though he cannot establish
with any certainty that the statement will cause the license to be withheld or altered, and even
though the dam will not be completed for many years.” Id. That scenario, as the Supreme Court
has explained, is very different from a case in which the plaintiff does not live near—and has no
plans to live near—the hypothetical dam. Id.
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, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc). Here, because the
individual Plaintiffs sought and were denied asylum through allegedly unlawful procedures, they
have identified a “particularized” and “concrete” interest. See Hotel & Rest. Emps. Union, Local
25 v. Smith, 846 F.2d 1499, 1502 (D.C. Cir. 1988) (en banc) (observing that individuals suffer an
injury in fact if their “asylum claims have been processed in [an] illegal manner”); see generally
Judicial Watch, Inc. v. U.S. Senate, 432 F.3d 359, 363–66 (D.C. Cir. 2005) (Williams, J.,
concurring) (explaining that, as a general matter, a “judicially cognizable” interest satisfies
Lujan’s “injury in fact” requirement). It is difficult to imagine an interest more “particularized”
than a person’s interest in seeking asylum and avoiding the risk of deportation. Cf. INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (“Deportation is always a harsh measure; it is all
the more replete with danger when the alien makes a claim that he or she will be subject to death
or persecution if forced to return to his or her home country.”).
25 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, 861 F.3d 174, 184 (D.C. Cir. 2017) (quoting Fla. Audubon Soc’y, 94 F.3d at 668).
“Importantly, with respect to the first link, the party . . . need not show that but for the alleged
procedural deficiency the agency would have reached a different substantive result.” Id. Rather,
the plaintiff need establish only “that the procedural step was connected to the substantive
result.” Id. (quoting Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 94 (D.C. Cir.
2002)).
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, 861 F.3d at 184 (citation
omitted). As one Plaintiff explains, if she “had more time to prepare for the interview, [she]
would have spoken with the Dilley Pro Bono Project and [she] would have understood the
process better.” Dkt. 12-4 at 8 (M.A.-H. Decl. ¶ 26). She “would have been in a better position
to describe the threats facing [her] daughter, which include[d] being kidnapped and trafficked by
transnational criminal organizations” and would have been able to speak with her brother or son,
both of whom had “additional information that would have helped [her] explain the
circumstances in Honduras that caused [her] fear and [her] need to leave” Honduras. Id. (M.A.-
H. Decl. ¶¶ 24, 26–27). With respect to the second link, the party seeking to establish standing
in a procedural-rights case must “demonstrate a causal connection between the agency action and
26 the alleged injury.” Ctr. for Biological Diversity, 861 F.3d at 184 (quoting City of Dania Beach,
Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007)). That requirement is also easily satisfied
here. But for the asylum officers’ determinations that the individual Plaintiffs did not have a
credible fear of persecution, they would have been “detained for further consideration of [their]
application[s] for asylum.” 8 U.S.C. § 1225(b)(1)(B)(ii).
The individual Plaintiffs’ alleged injuries are also redressable under the “relaxed
redressability requirement” that applies in procedural-rights cases. Ctr. for Biological Diversity,
861 F.3d at 185 (quoting WildEarth Guardians v. Jewell, 738 F.3d 298, 306 (D.C. Cir. 2013)).
Under that standard, the individual Plaintiffs “need not show that compliance with” the rules that
preceded promulgation of the Asylum Directives “would alter the” results of the credible-fear
interviews. Id. (quoting Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5 (D.C. Cir.
2005)). Rather, they need establish only “that a revisitation of” the credible-fear inquiry “could
reach a different conclusion.” Id. They have done so. Both of the adult individual Plaintiffs
have offered declarations detailing additional, pertinent information that they would like to
present and have attested that they did not present this information because the Asylum
Directives deprived them of adequate time to confer with others. See Dkt. 12-3 at 5 (L.M.-M
Decl. ¶ 13); Dkt. 12-4 at 8 (M.A.-H. Decl. ¶ 26). It is possible that, if given another chance, the
individual Plaintiffs will fare no better than they did the first time. The Court, however, need
decide only whether an asylum officer “could reach a different conclusion” with the additional
information, and that undemanding test is satisfied on the present record.5
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.
27 Plaintiffs’ FVRA challenge adds a twist to the Court’s standing analysis. If the Court
were to hold that Cuccinelli was appointed in violation of the FVRA, USCIS might reinstate the
Asylum Directives under the authority of a properly appointed official. That concern, however,
is answered by an array of decisions from the Supreme Court, the D.C. Circuit, and this Court
reaching the merits of challenges to actions “taken by . . . government official[s] on the ground
that the official invalidly [held] office,” Andrade v. Lauer, 729 F.2d 1475, 1494 (D.C. Cir. 1984)
(collecting cases), even when a properly appointed official might have reimposed the challenged
action. Notably, the Supreme Court and the D.C. Circuit reached the merits in SW General, Inc.
v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), aff’d, 137 S. Ct. 929, a case—like this one—involving a
challenge to an appointment under the FVRA. And although those decisions did not expressly
address standing, other, similar decision have done so. See, e.g., State Nat’l Bank of Big Spring
v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015) (holding that a bank had standing to challenge the
recess appointment of the Director of the Consumer Financial Protection Bureau because the
bank was regulated by that agency); Olympic Fed. Sav. & Loan Ass’n v. Director, Office of Thrift
Supervision, 732 F. Supp. 1183, 1188–89 (D.D.C. 1990) (holding that the plaintiff’s challenge to
the appointment of the agency director and acting director was redressable, even though the
plaintiff faced a continuing “threat of government intervention” by other officials).
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., 797 F.3d 1173, 1179–80 (D.C. Cir. 2015) (observing that a
court “must assume that the party asserting federal jurisdiction is correct on the legal merits of
his claim,” including “that the requested relief would be granted” (internal quotation omitted)).
28 Plaintiffs’ FVRA claim does not merely assert that Cuccinelli’s appointment was improper. It
also posits that, under the FVRA, the directives “shall have no force or effect,” 5 U.S.C.
§ 3348(d)(1), and, that a properly appointment official may not ratify the directives, id.
§ 3348(d)(2), see Dkt. 28 at 17–21 (arguing that the FVRA requires vacatur of the Asylum
Directives and precludes ratification). If Plaintiffs are right about the FVRA’s meaning, as the
Court must assume for present purposes, the individual Plaintiffs will likely be entitled to new
credible-fear interviews and will be able to take advantage of the additional time to prepare that
they have now received. As a result, the individual Plaintiffs’ FVRA claims redressable.
* * *
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., 137 S. Ct. at 1651 (“At least one plaintiff must
have standing to seek each form of relief requested in the complaint.”). Should subsequent
developments suggest that the scope of relief available to the individual Plaintiffs and RAICES
differs, the Court can return to the jurisdictional questions regarding RAICES’s challenges.
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
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.
29 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, 520 U.S. at 660. Here, the parties do not dispute that the
Director of USCIS is an “officer[],” and “not mere[ly] [an] employee[]” of the agency, see Lucia
v. SEC, 138 S. Ct. 2044, 2052 (2018), and they do not contend that Congress specified an
alternative appointment process. As a result, the default rule applies, and only the President,
with the advice and consent of the Senate, may appoint someone to serve in that position.
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 30 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., 137 S. Ct. at 935; Thomas A. Berry, S.W. General:
The Court Reins in Unilateral Appointments, 2017 Cato Sup. Ct. Rev. 151, 153 (hereinafter
“Berry, Unilateral Appointments”).
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., 137 S. Ct. at 935 (quoting same), and enacted a
series of related laws over the next seven decades, see, e.g., Act of Feb. 13, 1795, ch. 21, 1 Stat.
415; Act of Feb. 20, 1863, ch. 45, 12 Stat. 656, it did not enact the first comprehensive
“Vacancies Act” until 1868, SW General, Inc., 137 S. Ct. at 935 (citing Act of July 23, 1868, ch.
227, 15 Stat. 168). The 1868 Act “expanded the number of PAS offices that the President could
fill with acting officers,” and, of particular relevance here, it adopted “a default rule that the ‘first
or sole assistant . . . shall’ perform” the functions of the vacant office, “with an exception
allowing the President to instead fill the post with a person already serving in a PAS office.” SW
General, Inc., 137 S. Ct. at 935. Although the Vacancies Act has been “amended several times
over the subsequent decades,” it has retained the “core structure” established by the 1868 Act.
See Berry, Unilateral Appointments, at 154.
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
31 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 Id. § 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 23 Op. O.L.C. 60, 63–64 (1999) (“the better
understanding is that you must be the first assistant when the vacancy occurs in order to be the
acting officer by virtue of being the first assistant”), with 25 Op. O.L.C. 177, 179–80 (2001)
(rejecting that view), and that the courts have not had the occasion to resolve, see SW General,
Inc., 796 F.3d at 76 (“Although we do not decide its meaning today,” the default rule “may refer
to the person who is serving as first assistant when the vacancy occurs”). Now is not the time to
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).
32 resolve that question because Cuccinelli’s appointment fails to comply with the FVRA for a
more fundamental and clear-cut reason: He never did and never will serve in a subordinate
role—that is, as an “assistant”—to any other USCIS official. For this reason alone, Defendants’
contention that his appointment satisfies the FVRA cannot be squared with the text, structure, or
purpose of the FVRA.
The Court starts, as it must, the with the statutory text. See Hughes Aircraft Co. v.
Jacobson, 525 U.S. 432, 438 (1999). The FVRA provides in relevant part:
(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.
33 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, 510 U.S. 471, 476 (1994). Defendants contend
that Cuccinelli’s service as acting USCIS Director is lawful “by dint of his appointment as
Principal Deputy Director.” Dkt. 17 at 46. That argument, however, fails to confront the
essential meaning of the word “assistant,” which under any plausible construction comprehends
a role that is, in some manner and at some time, subordinate to the principal. An “assistant” is
“one who acts as a subordinate to another or as an official in a subordinate capacity.” Assistant,
Webster’s Third New International Dictionary at 132 (1993). A “first assistant,” in turn, is the
senior or principal assistant to the official or office at issue—in other words, the assistant who is
“foremost in rank” or the “chief” assistant. First, Webster’s Third New International Dictionary
at 856 (1993). Thus, although the “first assistant” holds a rank senior to other “assistants,” he
remains an “assistant” to the principal. Under that commonsense understanding of the meaning
of the default provision, Cuccinelli does not qualify as a “first assistant” because he was assigned
34 the role of principal on day-one and, by design, he never has served and never will serve “in a
subordinate capacity” to any other official at USCIS.
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:
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.
35 (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., 137 S. Ct. at 950 (Sotomayor, J., dissenting).
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., 137 S. Ct. at 941 (“The
‘notwithstanding’ clause simply shows that (b)(1) overrides (a)(1), and nothing more.”). But,
more importantly, like the preceding argument, even if it were sound it would be unavailing on
the facts of this case. That is, even if Defendants were correct, and § 3345(b)(1)(A) implied that
the first-assistant default rule found in § 3345(a)(1) includes those chosen to serve as first
36 assistants after the relevant vacancy arose, that would not solve Defendants’ difficulty in this
case because Cuccinelli was never and will never be the “assistant” to anyone or any office at
USCIS—before or after the vacancy arose.
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,” 2 Op. O.L.C. 113, 115 n.5 (citing 19 Op. A.G. 503
(1890); 28 Op. A.G. 95 (1909)); see also Doolin Sav. Bank, 139 F.3d at 209 n.3—that is, those
who hold an office that Congress created as subordinate to the principal office, see, .e.g., 31
U.S.C. § 301 (establishing a Deputy Secretary of the Treasury and providing that the deputy shall
carry out the duties and powers of the Secretary “when the office of Secretary is vacant”). To be
sure, by the time Congress enacted the FVRA a practice had developed of designating some first
assistants by regulation, and Congress was apparently aware of that practice. See Senate Report
at 12 (“Other departments and agencies have established first assistants by regulation”); see also
23 Op. O.L.C. 60, 63 (1999). But those offices, like “first assistant” offices created by statute,
existed before the principal office was vacated and continued to exist after that vacancy was
filled.
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
37 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, 139 S. Ct. 2356, 2364 (2019) (court must “careful[ly] examin[e]” the “structure of the
law itself”). The operative provisions of the FVRA take the following form: “The general rule is
that the first assistant to the vacant office shall [automatically] become the acting officer.” SW
General, Inc., 137 S. Ct. at 934–35. That default rule controls, except under two strictly defined
circumstances. First, “the President (and only the President) may direct” that another PAS
official temporarily perform the functions of the vacant office. 5 U.S.C. § 3345(a)(2). That is a
limited group of potential designees; it is a group that has already passed the tests of Senate
confirmation and presidential appointment; and the President must take personal responsibility
38 for the designation.9 Second, “the President (and only the President) may direct an officer or
employee of” the agency to temporarily perform the functions of the vacant office but only if that
“officer or employee” worked at the agency for at least 90 days in the year before the vacancy
arose and did so in a senior capacity (payable at least at the GS-15 level). 5 U.S.C. § 3345(a)(3).
That is also a limited group; it is a group that is likely to include officials with both experience
and seniority; and, again, the President must take personal responsibility for the designation.
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
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.
39 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., 796 F.3d at 70, in the face of the long-standing Department of Justice “position that, in
many instances, the head of an executive agency had independent authority apart from the
Vacancies Act to temporarily fill vacant offices,” SW General, Inc., 137 S. Ct. at 935. Congress
was concerned, most notably, that the Attorney General and other department heads had made
frequent use of organic vesting and delegation statutes to assign the duties of PAS offices to
officers and employees, with little or no check from Congress. See Senate Report at 3–4. In one
case, for example, the Attorney General designated someone “brought in from outside
Government to serve as Acting Assistant Attorney General for the Civil Rights Division . . . ,
immediately after the Senate refused to confirm him to that very office.” SW General, Inc., 137
S. Ct. at 936. That designation and many others like it prompted Congress to enact the FVRA.
See Senate Report at 3–4. But that position did not have a statutory first assistant, nor did other
offices that Congress pointed to as examples of Executive Branch overreach motivating the
FVRA’s passage.10 See, e.g., Senate Report at 3 (discussing the Solicitor General and other
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
40 positions at the Department of Justice). Simply put, overreaching in filling vacancies for
positions that have statutorily designated first assistants was not the primary problem that
Congress had in mind. See 5 U.S.C. § 3347(a)(1) (authorizing persons to perform the functions
and duties of a vacant office if a statute expressly provides for such temporary performance by a
particular officer or employee); Senate Report at 15–16.
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 Directives, 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).
41 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
(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);
42 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
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
43 than the Secretary constitutes a “function or duty” within the meaning of the vacant-office
provision of the FVRA. Id. 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, 136 S. Ct. 1850, 1856 (2016). Here, the textual analysis turns on what Congress
meant by inserting “and only that office” in both the statutory and regulatory prongs of the
definition of “function or duty.” On the one hand, that clause could require that the statute or
regulation at issue provide that the function or duty at issue is assigned to one particular office,
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.
44 just as the function of establishing policies for performing the functions of USCIS and
establishing “national immigration services and polices” is assigned only to the office of the
USCIS Director, 6 U.S.C. § 271(a)(3). Or, on the other hand, it could mean that the function
may not be reassigned and is not subject to the department head’s general vesting-and-delegating
authority. This latter reading is the one Defendants advocate. In their view, the vacant office
provision of the FVRA applies only in those rare circumstances in which the function at issue is
not only assigned to a single office but also may not be reassigned. See Dkt. 25 at 19. The Court
is unpersuaded for two reasons.
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.” Id.
§ 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,
45 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
46 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.” Id.
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
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, 428 F.2d 274, 280 (6th Cir. 1970) (“We hold that the Administrative Procedure Act does not require that all internal delegations of authority . . . be published in order to be effective.”); see generally Jennifer Nou, Subdelegating Powers, 117 Colum. L. Rev. 473, 518– 522, 521 (2017) (discussing the regulatory landscape of agency sub-delegations and observing that an agency head may, but need not, subject an internal sub-delegation to notice and comment).
47 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, 920 F.3d 1 (D.C. Cir. 2019). Dkt. 25
at 19. But the meaning of the vacant-office provision was neither disputed nor decided in
Guedes. Indeed, neither below nor on appeal did the parties dispute whether the official’s
appointment satisfied the FVRA, see Guedes v. ATF, 356 F. Supp. 3d 109, 138 (D.D.C. 2019),
nor did the parties contest that, by the time the dispute reached the D.C. Circuit, the challenged
rule had been validly ratified by a properly appointed official, see Guedes, 920 F.3d at 12; see
also Bump-Stock-Type Devices, 84 Fed. Reg. 9,239, 9,240 (Mar. 14, 2019) (ratifying the final
rule in dispute in Guedes). In any event, the word “non-delegable” appears nowhere in the
statute, and instead is found only in the legislative history. See Senate Report at 18 (“The
functions or duties of the office that can be performed only by the head of the executive agency
are therefore defined as the non-delegable functions or duties of the officer as they existed at any
point during the 180 days prior to the [vacancy][.]”). But even as used in the legislative history,
the word does not have the meaning Defendants assign to it. To the contrary, the Senate Report
uses the term in the same breath in which it affirms that the “non-delegable” functions and duties
include those assigned by regulation 180 days before the vacancy arose, even if later reassigned.
Id.
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
48 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, 359 F.3d 554, 565 (D.C. Cir. 2004) (“When a statute delegates authority to a federal
officer or agency, subdelegation to a subordinate federal officer or agency is presumptively
permissible absent affirmative evidence of a contrary congressional intent.”).
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 the 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
49 § 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, 796 F.3d 67 (D.C. Cir. 2015), provides helpful guidance on this point.
That case involved a violation of the FVRA in the appointment of the acting general counsel of
the NLRB. Id. at 69. But because the NLRB is expressly exempted from the vacant-office
provision of the FVRA, the D.C. Circuit had to determine the consequences of the improper
appointment without the aid of that provision. Id. at 78. In addressing that question, the Court of
Appeals started with the premise that agency action taken without lawful authority is at least
voidable, if not void ab initio.13 Id. at 79. It then considered whether one of two doctrines might
save the action at issue that case.
13 Because the NLRB “did not seek certiorari on this issue,” the Supreme Court did “not consider it.” SW General, Inc., 137 S. Ct. at 938 n.2.
50 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, 613 F.3d 1112, 1121 (D.C. Cir. 2010). “The burden to demonstrate
prejudicial error is on the party challenging agency action,” but it “is ‘not . . . a particularly
onerous requirement.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 410 (2009)). As in SW
General, Inc., that rule does not pose a substantial hurdle to Plaintiffs’ claim here. 796 F.3d at
80. The Court “cannot be confident that” the same Directives “would have issued under an”
acting Director “other than” Cuccinelli. Id.
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, 515 U.S. 177, 180 (1995)). That doctrine, however, has seen
substantial contraction over time and, under governing D.C. Circuit law, collateral attacks on an
official’s authority are permitted when two requirements are satisfied:
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.
Id. at 81–82 (quoting Andrade v. Lauer, 729 F.2d 1475, 1499 (D.C. Cir. 1984)). Here, Plaintiffs
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
51 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 law—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, 145 F.3d 1399, 1409 (D.C. Cir. 1998)). Although
Defendants are correct that 8 U.S.C. § 1252(e)(1)(B) divests the Court of jurisdiction to certify a
class, Plaintiffs have not asked the Court to do so, and the class action rule has no bearing on the
nature of the relief that the Court must provide. To the contrary, the structure of 8 U.S.C.
§ 1252(e)(3) itself contemplates that courts may issue declaratory judgments relating to the
“implementation of” the expedited removal provisions of IIRIRA that affect the interests of those
not before the Court; most notably, to expedite resolution of any legal challenges, Congress
required all challenges to the validity of new implementing rules or polices be brought within 60
days of their adoption. Id. § 1252(e)(3)(B). Defendants are also correct that the Supreme Court
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).
52 has cautioned that a district court vacating an agency action under the APA should not issue an
injunction unless doing so would “have [a] meaningful practical effect independent of [the
policy’s] vacatur.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010); see also
OA v. Trump, 404 F. Supp. 3d 109, 153–54 (D.D.C. 2019). This is because “[a]n injunction is a
drastic and extraordinary remedy, which should not be granted as a matter of course” or where “a
less drastic remedy . . . [is] sufficient to redress” the plaintiffs’ injury. Monsanto Co., 561 U.S.
at 165. Thus, absent the need to take further action, the Court will decline Plaintiffs’ request for
an injunction and will set aside the two directives at issue.
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 simply 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, 613 F.3d at 1121 (“If prejudice is
obvious to the court, the party challenging agency action need not demonstrate anything
further.”), the Court is convinced that the negative credible-fear determinations that each of the
five individual Plaintiffs received must be set aside.
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
53 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 provided 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
54 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
Related
Cite This Page — Counsel Stack
L.M.-m. v. Cuccinelli, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lm-m-v-cuccinelli-dcd-2020.