Lawsuit challenges Ken Cuccinelli’s legitimacy to direct immigration agency

The lawsuit argues that Cuccinelli lacks the authority to serve as acting director and that any directives he issues in that capacity are therefore invalid.

Cuccinelli, who took over at the agency on June 10, does not satisfy the legal requirements to serve as the director under Federal Vacancies Reform Act (“FVRA”) and the Constitution, the lawsuit argues.

The case was filed by Democracy Forward and the Catholic Legal Immigration Network, Inc. on behalf of seven asylum seekers and the Refugee and Immigrant Center for Education and Legal Services, a nonprofit that provides legal services to immigrants.

The groups are asking the court to declare the directives unlawful and block the agency from continuing to apply them.

“These unlawful directives issued by an unlawfully appointed official punish asylum seekers fleeing persecution and undermine American values,” said Democracy Forward Executive Director Anne Harkavy.

USCIS did not immediately respond to a request for comment.

One of the changes at issue is a move to decrease the time asylum seekers have to prepare for their credible fear interview, the first step in many asylum cases.

Until recently, asylum seekers were generally given “48 hours from the time they received notice of their interview or from the time of arrival” to prepare for their interviews. That has been reduced to a “full calendar day,” according to the lawsuit.

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The lawsuit, brought against the Department of Homeland Security and USCIS, also challenges a directive to do away with “continuances” to prepare for interviews, as well as bring an end to in-person legal orientation for vulnerable populations.

Prior to the directives, asylum seekers could request continuances if they needed more time to retain or consult with a lawyer or gather evidence, according to the complaint.

“Now continuances are virtually forbidden,” the lawsuit reads.

The advocate groups also argue that the directives violate additional federal law, in part because they undermine asylum seekers’ ability to prepare for their interviews and were implemented without notice or comment.

The Department of Homeland Security and USCIS have inflicted “substantial irreparable harm” to the asylum seekers, who are currently detained at the South Texas Family Residential Center immigration detention center in Dilley, Texas, according to the lawsuit.

As a result of the agency’s changes, the asylum seekers in the case and others “now face removal to countries where they face persecution and violence,” reads the lawsuit.

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